Ms Finch relied upon her skeleton argument. She drew our attention to the documents mentioned in it and stated that the chronology was not in dispute. In the skeleton there was a summary of the appellant's case between paragraphs 11 and 12. It was said that she was at risk of persecution for reasons of her membership of a particular social group. Sexual exploitation and enforced prostitution and forced labour were sufficiently serious by their nature and/or repetition to amount to persecution. There was a reasonable degree of likelihood that the appellant, as a former victim of trafficking for enforced prostitution and a single unmarried woman from a rural area with a young child and no family support would, if returned to China, be re-trafficked into enforced prostitution and similar forms of sexual exploitation and/or indentured servitude either within China or another country. There was also a reasonable degree of likelihood that she and her daughter would experience treatment which would amount to persecution on account of the fact that she was a single mother. There was no practical and effective protection available to the appellant and her child in China. It would be unduly harsh to the appellant and her child to move to live elsewhere in China. She was also entitled to humanitarian protection and protection under article 3 of the ECHR. In a section dealing with membership of a particular social group, a number of authorities were referred to together with Regulation 6 of the Refugee or Person in Need of International Protection (Qualification) Regulations 2006 and the UNHCR's Guidelines on International Protection. It was submitted that there was a serious possibility that the fact that the appellant had had a child out of wedlock at such a young age would lead to an assumption that she had been a prostitute in the past. In China there was a cultural expectation that women would be chaste and there were a number of social taboos and prejudices about sexual activity. There was strong disapproval of premarital and extramarital activity and having a child out of wedlock, which had all combined to ensure the appellant's social exclusion. In addition, women who were discovered to be prostitutes in China were often treated as criminals, not as victims and no investigations were carried out to see whether they were victims of trafficking. Under the heading of persecution it was submitted that both the act of being trafficked and the fact of being sexually exploited and forced into prostitution was capable of constituting persecution for the purposes of the Refugee Convention.
In relation to risk on return and the likelihood of the appellant being re-trafficked into forced prostitution in the skeleton argument the appellant relied upon the reports by Dr Sheehan, a statement from Julie Barton, Poppy Project, dated 1 st September 2007, the US State Department Trafficking Persons Report of June 2008, an article by Xin Ren entitled "Violence Against Women under China's Economic Modernisation, an article entitled, "China and Hong Kong" from a Fact-Book on the Global Exploitation, a China Human Rights fact sheet dated March 1995, a UN Inter – Agency Project on Human Trafficking: China Country page and an extract from Internal Migration in Contemporary China by D Davin dated 1999. It was submitted that the background evidence indicated that China was a source, transit and destination country for men and women trafficked for the purposes of sexual exploitation and forced labour. Domestic trafficking remained the most significant problem, with an estimated 20,000 victims; 90% of this number had been trafficked from six provinces, one of which was the appellant's own province of Anhui. China remained on the US State Department Trafficking Tier 2 Watch List for 2008, for a fourth year which represented a deterioration of its status since the end of 2003. Trafficking in China for sexual exploitation and indentured servitude was widespread and endemic and the authorities were failing to deal with what was an increasing problem.
The NGO Report by Human Rights in China in June 2006 on the Implementation of the Convention of the Elimination of all forms of Discrimination against Women in the People's Republic of China stated in paragraph 22 that:
If the appellant would have to return to her home area under the hukou system, she was from one of the poorest provinces in east China which was a major source for trafficking. If she wanted to move she would have to apply for permission which was unlikely to be given in the absence of a permanent job. If the appellant wanted to remain in an urban area she would have to do so illegally or by obtaining fake ID which would cost her money and there was a high risk that the PRC authorities would detect her fake ID. Those found with fake documentation or those without documentation in urban areas were liable to detention in centres containing some of the most vulnerable members of society. The centres were abusive in their conditions and act as a magnet for people traffickers. If the appellant were returned to China there was a serious possibility she would find herself in such a detention centre. It would be virtually impossible for the appellant to find herself accommodation and work in order to survive. Rehabilitation centres for victims of trafficking did exist, but they could accommodate 2,000 people out of an estimated 10,000 to 20,000 victims a year. The closest to the appellant's home was several hundreds of miles away. The USSD Report described progress in 2006 in protection and rehabilitation of PRC trafficking victims as "modest" and concluded that "protection services remained temporary and inadequate to address victim's needs". Seeking private accommodation would pose major problems for the appellant as anyone who takes her in as a tenant might well do so with the intention of informing people traffickers in order to claim a reward. Seeking employment would place the appellant at risk of re-trafficking since in order to find employment the appellant's only option is to approach an agency, many of which are fake and a front for people trafficking. The appellant did not have any established family networks which were the main route to finding safe employment. There was also a possibility that on her return the appellant would be fined or imprisoned as a punishment for leaving the country illegally, which would worsen her economic situation which in itself would put her at greater risk of being re-trafficked. If she were fined or sentenced to a period of detention it would publicly identify her as someone who had been involved in the sex industry, which in turn would expose her to further risk of re-involvement in the sex industry and targeting by traffickers.
In dealing with sufficiency of protection the skeleton argument relied upon the UNCHR Trafficking Guidelines dated April 2006, in paragraph 23 of which it was said where a state failed to take such reasonable steps as were within its competence to prevent trafficking and provide effective protection and assistance to victims, the fear of persecution of the individual was likely to be well-founded. The mere existence of a law prohibiting trafficking in persons would not of itself be sufficient to exclude the possibility of persecution. If the law existed but was not effectively implemented, or if administrative mechanisms were in place to provide protection and assistance to victims but the individual concerned was unable to gain access to such measures, the state may be deemed unable to extend protection to the victim, or prevent the potential victim, of trafficking. It was repeated that China was placed on the Tier 2 Watch List for the fourth consecutive year for its failure to show evidence of increasing efforts to improve comprehensive victim protection services and address trafficking for involuntary servitude. China did not prohibit the commercial sexual exploitation involving coercion or fraud, nor did it prohibit all forms of trafficking, such as debt bondage. Vice crime syndicates played a significant role in trafficking and the risk of detection and prosecution for such groups was not great as they were often under the protection of government or PRC officials. The statistics and investigations of prosecutions for trafficking cited by the Chinese government demonstrated that the government did not have trafficking under control and that this situation had deteriorated since 2003. Women in the sex industry do not seek protection from PRC officials as they often take the side of the traffickers or pimps. Trafficked women often have the most to fear from law-enforcement personnel. Sexual rehabilitation centres for victims of trafficking exist, but are inadequate for the reasons set out above.
Under the heading of "Lone Mother" it was submitted in the alternative that returning the appellant and her daughter to China would amount to a breach of the Refugee Convention and it would also be unduly harsh to expect her to relocate within China as a single mother with no family or friends to support and protect her. In particular the hukou system, coupled with her own personal circumstances, would result in her facing utter destitution and an existence below a bare subsistence level in any place or relocation. Single mothers and their offspring suffer severe and long-term discrimination in China, due to the strong disapproval of pre-marital and extra-marital sex. Despite the Marriage Act of 1982 guaranteeing children born out of wedlock the same rights as children born within marriage, in practice the former were deemed illegitimate by the Chinese government. Applications for household registration from peasants and working class mothers with limited education, money and status were routinely rejected. Denial of hukou to children born outside marriage consequently led to denial of access to health services and enrolment in education institutions. As a group, single mothers were faced with fewer job prospects, lower earning ability and limited access to housing. They had considerably diminished prospects of marriage due to the Chinese government's One Child Policy and their low social status. The quality of opportunity for single mothers from peasant and working class backgrounds and their offspring in China to access basic resources, education, health services, food, housing, employment and the fair distribution of income had a substantial impact on their capacity to subsist. It also impeded their right to development under international law. It was submitted that the appellant as a single, unmarried woman from a rural area, with a young child and no family support, if returned to China would face economic hardship and systematic discrimination by the Chinese government and civil society, which threatens her capacity to subsist and amounts to persecution. The appellant relied upon an article entitled, "Birthrights" in the Guardian newspaper on 24 th December 2002, an article entitled "Single Chinese Mothers beset with troubles" in the China Daily for 18 th December 2004, Dr Sheehan's first report, a paper from the Research Directorate of the Immigration and Refugee Board of Canada entitled, "China Reforms Household Registration System (Hukou) (1998 – 2004)", dated February 2005, and a report from Human Rights in China entitled, "Not Welcome at the Party: Behind the Clean-up Of China's Cities – A Report on Administrative Detention under 'Custody and Repatriation'", dated September 1999. It was submitted that if the appellant were not entitled to protection under the Refugee Convention on this basis then she should be granted humanitarian protection or discretionary leave to remain. The latter should be granted in recognition that she and her daughter would not be able to continue to enjoy private life if removed to China as they would be rendered absolutely destitute and would be also ostracised for breaking fundamental norms and practices of Chinese society.
In her oral submissions Ms Finch submitted that the appellant had been persecuted in the past. She had been trafficked as a minor. Her fear was that because of her past she would be liable to be trafficked internally or out of China in the future. It was true that at the age of 15 she had been enticed into prostitution, but a minor was not capable of consenting to being a prostitute. Ms Finch referred to Articles 34 and 35 of the United Nations Convention on the Rights of the Child by which state parties undertook to protect the child from all forms of sexual exploitation and sexual abuse and would, in particular, take all appropriate national, bi-lateral and multi-lateral measures to prevent the inducement or coercion of a child to engage in any unlawful sexual activity by which they should take all appropriate measures to prevent the abduction of the sale of all trafficking children for any purpose or in any form. She also referred to the Council of Europe Convention on Action against Trafficking in Human Beings, which in Article 4 included in the definition of trafficking in human beings trafficking by deception and the abuse of power of a person in a position of vulnerability.
Ms Finch submitted that in the case of SB the Tribunal looked at a former victim of trafficking in the context of the society that she would return to. The appellant was not able to step back into any society easily. She would be stigmatised as having previously been trafficked. An assumption would be made about her because of her return to a rural county as unmarried and with a child. At the very least she would be taken to have broken the conventions about pre-marital sex, but it would be likely that it would be presumed that she had been involved in the sex trade. Given her age there would be a presumption that she was exploited and trafficked. She would not be regarded as merely a single mother, but as someone who had allowed herself to mix with exploiters. It was plain from the background evidence that the Chinese had no concept of such women as victims. There was a certain contradiction in that Chinese society expected women to be chaste. There was a strong disapproval of sex outside marriage, yet Chinese society was rife with prostitution and was a source country for trafficking in women and children.
Ms Finch referred to the USDOS Trafficking Persons Report dated June 2008 which stated that the PRC was the source, transit and destination country for men, women and children trafficked for the purposes of sexual exploitation and forced labour. China was on the Tier 2 Watch List and had been for the last four years. Tier 3 comprised those countries of which no complaint was made. Tier 1 comprised those where protection was lacking. In 2004 Tier 2 comprised those countries largely tackling the problem. Tier 2 was subsequently divided into two. The Tier 2 Watch List included those countries making progress but not meeting on a practical level sufficient measures to combat trafficking. China had remained on the Watch List since 2004. It was not accepted that China was taking practical steps to deal with the problem. Women were being shipped out all over the world. There was a grey area between smuggling and trafficking. The appellant felt that she was paying to get out of China to improve her situation but she had been trafficked. It was not a question of China even reaching the minimum level required. The figures for 2006 to 2007 showed that few cases were tackled and sometimes the victims were punished which suggested that they were not seen as victims. Recommendations had been made in the report, namely for China to provide adequate funding to local and provincial governments to implement the new national action plan for establishing a form of victim identification procedures conduct public awareness campaigns to inform the public of the risks and dangers of trafficking. There was no system in place in China whereby vulnerable people would be identified and provision made for their rehabilitation and for teaching them new skills. The report said that China did not have a comprehensive nationwide victim protection service, although it had taken some steps to improve intra-governmental co-ordination and co-operation in vulnerable southern border provinces.
Ms Finch submitted that the absence of a comprehensive nationwide victim protection service was important in the appellant's case because she would go back to China in a vulnerable position. Her past circumstances were not the same as for other women who may be returned. It was accepted that she was an orphan and that after her grandmother died she had no other family members. From the age of 10 to 15 she had lived as a street child. She did not develop community ties or friendships upon which she might rely. The ties that she did make pulled her into prostitution and led her to being trafficked. She had no employment experience. Due to the registration system she would go back to a rural county in a poor province where she had no land, house and could not be employed as a labourer due to her lack of experience and gender and where it was unlikely she would be employed given the level of social stigma against an unmarried woman with a child and the implication that she was or had been a prostitute. It was inconceivable that she would be wanted as a nanny since most employers wanted a nanny to devote their time to their own children.
Ms Finch acknowledged that it was the case that there was a very basic safety net at local level which the expert said was only a temporary measure until the person got on her feet. It was not clear how she would do that without an opportunity for employment in a rural county. She could only move elsewhere if she found a job. It might be possible if she were higher up the employment ladder where one could send a CV or had family connections. It was not open to this appellant. She could not turn up at the factory gate looking for employment holding the hand of a toddler. There were only three shelters where the stay was limited, even if she had a place. She was in a situation of extreme vulnerability to further exploitation. Ms Finch submitted that she was more aware than when she had been 15 years old, but older men had been duped into thinking they were being recruited for genuine employment. She submitted that having a child would not be an impediment to being re-trafficked. The child herself would be at a disadvantage. Chinese society had been happy to see the appellant on the streets collecting tins. When her grandmother died, those around her were content to see her left to her own devices. This was a society that regularly abandoned female children to their own devices.
Ms Finch was asked to deal with the subjective element on the part of someone who was returned to China on the understanding that one person might have a resolve that she would never be trafficked again whereas another may not. Ms Finch was asked to say how the Tribunal should regard the appellant. She submitted the effect on the appellant could be seen by the length of time it took for her to disclose what had happened to her, which was not surprising given the Chinese attitude towards sex. She was still only 18 and her child was 2 years old. She was very scared of being returned. From her previous life she knew what it was like to be at the bottom of the pile. She would not be resigned to live that kind of life. Faced with the question of vulnerability, she submitted that the appellant was scared and did not have a lot of life experience. When one considered the evidence of false training and recruitment, the fact that she had paid money in the past did not mean that she would recognise all scams in the future.
In relation to the government action plan she submitted that that was aspirational. As the expert said it's achievement would depend on funding. It reflected an analysis of the weaknesses in Chinese society and its proposals were directed to what they saw were those weaknesses in "our society". Section 2 of the Operational Measures and Division Responsibilities advocated support for poor women in rural areas and it was acknowledged that the recruitment process of job seekers, employers and job brokers should be regulated. These were people the appellant would have to rely upon. A further aim was to actively and successfully reform, monitor and educate criminals who traffic women and children to reduce the rate of re-offending. This clearly showed that the authorities believed that they were not doing enough to re-educate traffickers. When recommending that they should resolutely combat the "buyers market" for crimes of trafficking in women and children, it was recognised that there existed at the moment a buyers market. In suggesting that they should strengthen social care for trafficked women and children and help them to smoothly return and re-integrate into society, a problem was acknowledged which was a problem for the appellant. Ms Finch suggested that throughout the document was aspirational. She made reference to a Chinese government website which, in commenting on the government action plan, stated that government agencies as well as NGO representatives paid regular follow-up visits to women delivered from trafficking. They also encouraged the community to take good care of these women rather than to discard them. She submitted that the funding would be crucial and the money was just not there to implement the plan. Ms Finch took us through passages in her skeleton argument which it is not necessary to mention in any detail since we have already dealt with it.
Our conclusions
The burden of proof is upon the appellant to show to the standard of reasonable degree of likelihood or substantial grounds for believing that there is a real risk of serious harm on return to the PRC for a Refugee Convention reason or alternatively so as to entitled her to humanitarian protection or protection under article 3 of the ECHR. Our decision must be based on the entirety of the evidence.
A brief evaluation of the evidence of Dr Sheehan
We bear in mind that in paragraph 120 of their judgement in NA v The United Kingdom – 25904/07 [2008] ECHR 616 the European Court of Human Rights said that in respect of reports the authority and reputation of the author, the seriousness of the investigation by means of which they were compiled, the consistency of their conclusions and their corroboration by other sources were all relevant considerations.
We are grateful to Dr Sheehan for both the written and oral evidence which she has presented on behalf of the appellant. As a researcher and teacher of contemporary Chinese studies and as a result of her visits to the PRC she clearly has a familiarity with Chinese society which of course is helpful in the compilation of her reports. In her oral evidence she told us that on her last visit to China she spent time examining documents which might well have given her a degree of expertise assessing the genuineness of documents. We did have the impression, however, that more generally her expertise lay in assembling items of background material which provided the basis for her expressions of opinion, rather than having an expertise which gave her the confidence to be able to predict what was likely to happen in a given situation. The disadvantages of such an approach are several. In the first place a misreading of the background material may distort the value of Dr Sheehan's opinion. An example of this lay in the fact that in paragraph 9 of her first statement Dr Sheehan said that the appellant might find herself in a Custody and Repatriation centre which typically housed some of the most marginalised groups in society. This suggestion was adopted in paragraph 36 of the skeleton argument submitted on behalf of the appellant. Dr Sheehan, however, failed to observe that the background material demonstrates that Custody and Repatriation centres were abolished in 2003. It was only in cross-examination when it was put to her that these centres had been abolished that she acknowledged this to be the case. Had this not occurred the Tribunal could very easily have been misled.
A further example was the opinion of Dr Sheehan that women would only be employed to work the land if all the men had migrated or would only help out as a member of a family. In her article entitled "40 Million Missing Girls" dated 7 th October 2005, Laurel Bossen dealt with the three basic explanations for Chinese gender discrimination the first of which was that sons were necessary for heavy farm labour. She said that rural women had contributed to a large proportion of the farm labour in China for nearly 50 years. The fact that many men had left farming to women and migrated to towns and cities in search of better incomes since the 1970s undercut their "heavy labour" argument. It is apparent, therefore, that women in rural areas had carried out farm labour even before the migration of men to towns and cities in the 1970s. Furthermore it is interesting to note that in the HRIC report entitled "Implementation of the Convention on the Elimination of all Forms of Discrimination against Women in the People's Republic of China dated June 2006 it is stated that unmarried rural women participated in non-farming work at the same rates as men.
Yet a further example is provided by Dr Sheehan's opinion that the hukou system would force the appellant to return to the place from which she came in Anhui province. The most recent detailed objective material relating to the hukou system with which we were provided was the Refugee Board of Canada paper, published in February 2005, dealing with the reforms of the hukou system between 1998 and 2004. Set against one of the conclusions in that paper that the hukou reforms have meant that the government can no longer restrict migrants' entrance to the cities her opinion, as we shall see, seems to be over rigid and outdated.
Another disadvantage is that on a number of occasions when Dr Sheehan was invited to express an opinion she was not able to do so. One example of this was when she was asked by Ms Finch what would happen to the appellant on return at the border. Her reply was that the COIR explained that we did not know. It was only when pressed by Mr Saunders that she conceded that as the appellant had no means it was possible she might not have to pay a penalty for having migrated illegally. Another example was when Dr Sheehan described the situation of unmarried women having children as a muddy area in view the fact that an unmarried woman could not obtain a birth permit. There is background evidence, however, to which we shall refer in due course which describes the situation of a number of unmarried mothers who have regularised the position of their children. We do not make an adverse assessment of Dr Sheehan but merely point to these matters as an illustration of the limitation on the value of her evidence, since she herself does not have such a familiarity with what actually happens in the PRC to enable her to offer an explanation of what is likely to happen in any given situation.
Assessment of the general position for women returnees with a history of trafficking
Paragraph 1.06 of the Country of Origin Information Report on China dated 1 st June 2008 indicates that the CIA World Fact Book, dated 15 th April 2008, recorded that China's population numbered 1,330,044,605. It said that in its Country Profile for China, dated August 2006, the US Library of Congress noted, "60%–62% of the population lived in rural areas in 2004, whilst 38% lived in urban settings. …" Various items of background evidence confirm the opinion of Dr Sheehan that the trafficking of women for prostitution in China is a serious problem. In the section dealing with the trafficking of persons, the US State Department Report on Human Rights Practices dated 11 th March 2008 stated:-
The passage under the heading "Women" said:-
US State Department "Trafficking in Persons Report" dated June 2008 stated:-
It is clear from the International Labour Organisation Report of the CP-TING Project that the province from whence the appellant comes, Anhui, is a 'sending' province in China. The report described the project's aim to make migration channels safe for girls who wanted to leave their rural villages operating in the three 'sending' provinces in Central China (Anhui, Henan and Hunan) which had a combined population of 223 million inhabitants.
As a matter of perspective the figure of 20,000 cases of trafficked women per year represents less than .002% of the population of China. Applied to the population of the United Kingdom it would mean that there were virtually no trafficked women.
It is not necessary for us to consider the reasons for the growth in prostitution in China which was explained by Dr Sheehan, or the increase in trafficking. Suffice it to say that her book "Children in the Sex Trade in China" published by Save the Children, Sweden, Julia O'Connell Davidson stated that most had followed one of three routes into prostitution. Some had migrated in search of other forms of work, but had been unable to find jobs, or to live on the wages from other work. They thus became vulnerable to pressure from others to enter the sex industry, or to making a decision to engage in sex work. Some had been tricked and trafficked into the sex trade when they sought to migrate for factory, farm, restaurant, hotel or domestic work. Some had chosen to migrate into sex work because it was more highly rewarded than any occupation available to uneducated and even many educated women.
There is disagreement in the background material as to whether China is fulfilling its responsibilities to deal with trafficking of women. The United Nations Inter-Agency Project on Human Trafficking in the Greater Meikong sub-region in dealing with China says this:-
In March 1995 the Christusrex China Human Rights Fact Sheet, dealing with the abduction and trafficking of women, acknowledged that the PRC government had enacted various laws to combat the sale of women, but the statistics released by the government did not reliably indicate the scale of the problem. It can be seen from the Criminal Law of the People's Republic of China (1997) that there are a considerable number of articles in the Criminal Code which provide for substantial penalties for offences relating to the sexual exploitation of women. The criticism of the Chinese authorities in dealing with the problems of trafficking does not centre on failing to criminalise activities relating to the trafficking of women or failing to provide for severe penalties, apart from that contained in the US State Department Trafficking in Persons Report dated June 2006 which stated that the Chinese definition of the term "trafficking" did not include acts of forced labour, debt bondage, coercion, involuntary servitude or offences committed against male victims. In this connection it can be seen from Article 240 of Chapter 4 of the Chinese Criminal Law that seducing, tricking or forcing abducted women into prostitution, selling abducted women to others who in turn force them into prostitution is a criminal offence. Criticism rather centres on the lack of the effective prosecution of offenders, a failure to deal with the complicity of state officials, the lack of provision of adequate funding to local and provincial governments to fund the new additional action plan, the lack of formal victim identification procedures, provision for their protection and rehabilitation and the failure to conduct broad public awareness campaigns to inform the public of the risks and dangers of trafficking. The US Department of State Trafficking Persons Report dated June 2008 states as follows:-
In our view Dr Sheehan has validly criticised the statistics put forward by the Chinese authorities. She referred to the article by Xin Ren, "Violence against Women under China's Economic Modernisation" stating that according to government reports, between 1990 – 1991, 65,236 people were arrested for involvement in the sale of women and children. From 1993 – 94, another 50,000 traffickers were arrested in a further 33,100 cases. The authorities reported that 27,000 people, including 2,700 children, were rescued. However, even the government admitted that this was just the tip of the iceberg concerning the problem of women trafficking. The China Rights Forum in their report on "The Property of Men: The Trafficking and Domestic Abuse of Women" dated 30 th June 1995 gives slightly different figures. The official report stated that in 1991 and 1992 the Public Security Bureau (PSB) uncovered 50,000 cases of trafficking, arrested 70,000 people and rescued 40,000 women and children. The figures released in 1993 and 1994 reported 24,751 women and 2,731 children rescued and 49,839 traffickers arrested. The report went on to say that the total number of women abducted and sold may be double the official numbers, according to one Chinese journalist who covered women's issues for a number of years.
The United Nations Inter-Agency Project on Human Trafficking in the Greater Meikong Sub-Region in dealing with the arrest and prosecution of traffickers, painted a fairly positive picture of the role of the Ministry of Public Security (MPS) in the national fight against trafficking in women and children. The report says that from 1991 to 2000, MPS organised four campaigns to combat trafficking women and children in selected areas across the country. From 2001 to 2003, the police cracked down on 20,360 cases of trafficking in women and children, arrested 22,010 criminals, and rescued 42,215 trafficked women and children. Local procuratorates approved 7,186 arrest cases (sic) of trafficking in women and children, arresting 13,995 suspects and approved 226 arrest cases of buying trafficked women and children, arresting 416 suspects. 8,442 cases of trafficking women and children were brought to court by public prosecution, which involved 15,000 defendants. 177 cases of trafficked women and children were brought to court by public prosecutions, which involved 358 defendants. The report, however, does not deal with more recent figures which suggest a far less optimistic picture.
We agree with the comment by Dr Sheehan that the figures given in the US Department of State Report on Human Rights Practices for 2007 do not provide any data on the outcome of the 3,371 cases investigated or on convictions for traffic offences generally. It is the case that the Department of State Trafficking in Persons Report dated June 2008 states that MPS reported investigating 2,375 cases of trafficking of women and children in 2007 which was significantly lower than the 3,371 cases it cited in 2006. The report said these statistics were likely to have been based on China's definition of the term "trafficking". We agree with Dr Sheehan suggestion that the statistics suggested that fewer cases were investigated and fewer victims rescued than in 2001 – 2003. She criticised in our view, with good reason, the statement attributed to Mr Zhang, the Deputy Minister of Public Security, on 15 th December 2007 taken from the Beijing Youth Daily and reported human trafficking.org "China improves effort to combat trafficking through regional mechanisms", that 2,500 trafficking cases were solved in 2006 constituting 805– 90% of the total and that no law enforcement personnel were involved in any trafficking cases. Dr Sheehan's view was that she did not accept that 2,500 cases, if that figure were accurate, could be known to constitute 80 to 90% of the total trafficking, given a minimum annual number of victims of 10,000 to 20,000 and she would require further details and corroboration of the claims made in the article before accepting it as evidence of a breakthrough in China's anti-trafficking efforts, given the weight of evidence to the contrary. The suggestion that no law enforcement personnel were involved in any trafficking cases was belied by the report of the release of hundreds of slave labourers in summer 2007 from the notorious brick kilns in Shanxi in which there was collusion between the police and labour protection officials and the kiln owners. That they were was also borne out by the article by Emily E Schuckman, quoted by Dr Sheehan, entitled, "Anti Trafficking Policies in Asia and the Russian Far East: A Comparative Perspective" published in the winter of 2006 to the effect that:-
The US State Department Report for 2008 also noted that despite its general anti-corruption measures, the PRC government had not demonstrated concerted efforts to investigate, prosecute and punish government officials for complicity in trafficking.
We also accept Dr Sheehan's criticism of the Chinese government, for failure to make sufficient provision for transfer, training and rehabilitation centres for victims. She acknowledged that provision had been made in areas that were major trafficking "sending" areas namely in Kunming, in Yunnan province, Chengdu, Sichuan province and Xuzhou in Jiangsu province, but these centres were only able to accommodate 2,000 women out of an estimated minimum of 10,000 to 20,000 victims a year. In our view given the scale of the problem there is clearly insufficient provision for the rehabilitation of victims of trafficking.
In Bagdanavicius and Anor, R (On the Application of) v Secretary of State for the Home Department [2003] EWCA Civ 1605 , the Court of Appeal held that sufficiency of state protection, whether from state agents or non-state actors, meant a willingness and ability on the part of the receiving state to provide through its legal system a reasonable level of protection from ill-treatment of which the claimant for asylum had a well-founded fear. The effectiveness of the system provided was to be judged normally by its systemic ability to deter and/or to prevent the form of persecution of which there was a risk, not just punishment of it after the event. In the light of our assessment of the situation we take the view that although the problem of trafficking in China is a large one in terms of overall numbers, given the small numbers involved in relation to the size of the female population of China, it cannot be said that the deficiencies in the system of state protection in themselves give rise to a risk of serious harm from traffickers for women and girls generally. Where, however, in a given case it can be established that there is a real risk of a woman or girl being forced or coerced into prostitution, at the present time it is unlikely that it could be successfully argued that this would be so despite there being in place an adequate system of state protection. Each case, however, must be decided on its own facts. We hesitate to express a definitive view because China is a vast country and it may be, for example, that in a particular part of China the efforts to eliminate trafficking are determined and the level of complicity between state officials and traffickers is low.
A consideration of this appeal requires some reference to the Chinese household registration system (HRS) known as the "hukou" system which was implemented in China in the 1950s to improve migration control and economic planning. The paper from the Immigration and Refugee Board of Canada dealing with the "hukou" system dated February 2005, makes it plain that the status of a person's hukou was characterised as agricultural (rural) or non-agricultural (urban). Traditionally there were numerous social benefits and privileges associated with an urban hukou, including the provision of basic food, better employment, high incomes, subsidised housing, the right to free education, medical care, social security and pensions. Although those benefits had been significantly reduced in the last decade, there were still important opportunities reserved for urban hukou holders, particularly in relation to better housing, education and employment. The situation led academics and human rights activists to describe the HRS system as being discriminatory in nature because it restricted the movement of rural hukou holders by requiring them to obtain temporary permits to reside in cities. These temporary permits, however, did not entitle their holders to the benefits and rights enjoyed by regular urban hukou holders, and until the reforms of 2003, migrants who did not possess these permits were considered illegal, could be detained, fined and sent back to their permanent resident locations. Internal migrants, particularly from rural areas constituted the vast majority of detainees under the Custody and Repatriation system until it was abolished in 2003.
According to one source quoted in 2005, in the last six years the process of obtaining temporary resident permits had become considerably easier and simpler. National reforms of the hukou system included allowing those of less than 18 years of age to choose to inherit their hukou status from either parent, facilitating hukou conversions for spouses previously separated by hukou restrictions, prioritising hukou conversions for aged people who depended on their children for care, as well as facilitating the hukou conversion of investors and professionals and their family members. In 2000 the government began to eliminate quotas limiting hukou registrations in small cities and towns and in March 2001 a State Council circular ordered small cities of less than 100,000 inhabitants to grant hukous to residents with fixed jobs and homes beginning in October 2001. In August 2003 the Ministry of Public Security (MPS) approved additional measures aimed at easing travel restrictions, particularly in western areas of China which included allowing educated people wishing to work in these regions the option of changing their permanent hukou registration to their area of work and allowing parents to register their new born's birth in either parents' place of permanent residence. The elimination of the Custody and Repatriation Scheme in 2003 had a significant impact on the HRS (Household Registration System), for example, many provincial and municipal governments throughout China sped up their HRS reforms. State council regulation ordered that migrant workers no longer be arrested for not possessing the right papers and ordered police to provide urban residency documents to any migrant who found employment.
The report indicated that the application of HRS reform policies promulgated at the national level varied widely among the different provinces and cities, making generalisations impossible. According to Beatriz Carrillo, one of the report's sources, "liberalisation" of the HRS was more likely in smaller urban areas, whereas the larger urban centres tightly managed their HRS. Despite the regional variations, the qualifications required to obtain urban registration tended to be similar and often consisted of having fixed residence and stable employment (usually one year on the job) in an urban area. During 2003 several provinces and major cities began to speed up local hukou reforms prompted by the outcry resulting from the March 2003 death of Sun Zhigang, a 27-year old university graduate, in the custody of Gangzhou policemen, after he was arrested for not carrying identity documents. This case was referred to in evidence by Dr Sheehan. Beijing, for example, introduced further reforms in the summer of 2003, by issuing a new type of hukou registration called "The Beijing Employment and Residence Permit", which would give its holders, "rights to housing, education, investment, social and medical insurance and a driver's licence". In order to be issued with such a permit, however, a person must be residing in Beijing, be employed, have a Bachelor's degree and two years of employment experience. That meant according to the South China Morning Post that only a select few would qualify.
Under the section dealing with the human rights implications of the hukou reforms the report says that although the hukou reforms have facilitated population movement and created opportunities for rural migrants, academics and human rights activists who have analysed the effect of these reforms on contemporary Chinese society generally agree that the reforms have failed in eliminating the social gap between urban and rural residents. The report said that Beatriz Carrillo explained that one of the problems with the hukou reforms was that, even though the government could no longer restrict migrants' entrance to the cities, it still could, through the hukou system, establish who was and who was not an "urban citizen". The report stated that the hukou booklet is usually required for school registration in local public schools, and when applying for an original or a replacement personal identity card. Although it was not required for medical care, it could be used for identification purposes anywhere that an identity document was required. According to Fei-Ling Wang, another source, if a member of a household travelled abroad with the original hukou in his/her possession, the family back home would have no difficulty in obtaining a duplicate hukou booklet.
The report said that according to Beatriz Carrillo, individuals in China did not need to use their hukou on a regular basis. They could use their national identity card at the bank and at most government departments, even while travelling within China. According to Wang, another of the report's sources, persons caught with a fake hukou in their possession were punishable by fines only, but those caught producing and selling fake documents may be prosecuted. Hukou remained a key identity document in China and those who required fake hukous were usually rural migrants attempting to improve their access to social benefits by acquiring urban hukous. A Guangdong survey, reported in an article by Anita Chan entitled "Exploitation of Migrant Workers in China's Export Manufacturing Sector" dated 9 December 2004, referred to in the report, found that 80% of overseas owned companies in China were not concerned about whether or not the documents used by job applicants were forged because it had no effect on productivity.
The reforms also included the introduction in 1985 of the Temporary Residence Certificate which allowed internal migrants wishing to reside in urban areas for more than three months to register legally with local hukou authorities. The new stipulation was important in that it tacitly allowed "spontaneous" migration into urban areas, whereas previously, temporary work had to be "arranged between the recruiting urban work units and the supplying communes". It did not, however, entitle their holders to the urban benefits associated with the regular urban hukou and often in addition to the TRC migrants were required to obtain additional documents, such as work permits, family planning permits and to pay administration and application fees in order to work in urban areas. Also in 1985 the photo-equipped resident identity card (RIC), also referred to as the citizen identity card, was adopted. According to one author, the personal identity card has a national serial number, carries personal information as well as the hukou location of its holder, but does not carry the discriminatory insulting reference to hukou categorisation. The RIC shifted the focus of population registration from the household to the individual and from one book per household to one card per person. Beatriz Carrillo stated that in the last two to four years the personal identity card had become the most important identification document in China. The report says that hukou issuance was the responsibility of the PSB. People can travel relatively freely within China, in order to legally change permanent residence, one still needs approval from the Public Security Bureau (PSB). Household registration is issued by the PSB office in the place of permanent hukou registration which is sometimes not the place of residence. If a request to change a person's permanent hukou residence is approved, the individual must notify the PSB office in the original hukou zone to have his/her name deleted, as well as notify the PSB in the new hukou zone, where his/her name would be registered. Those who travel overseas for more than a year must cancel their hukou when applying for their passports and may restore their previous hukou upon returning to China.
The report states that according to a source, "Today's China", people can travel relatively freely. Generally "the worst punishment that an illegal migrant (floater) faces is forcible return to his/her home town or village". This is often a losing battle as the floater simply returns to the area from which they were removed. In addition, the reforms introduced in 2003 have greatly limited repatriation to "paupers and criminals", while making it relatively easy for ordinary migrant workers to get legal, albeit temporary, urban registration.
The effect of the background material before us on this topic is borne out by the material before the Tribunal in JC (double jeopardy: Art 10 CL) China CG [2008] UKAIT 00036 . In that case the Tribunal received evidence from Dr Michael Dillon, a Senior Lecturer in Chinese History in the department of East Asian Studies in the University of Durham who had been teaching and researching on the PRC for over 30 years and who had made research visits to many regions of China. In his report he explained to the Tribunal that the hukou system of personal identification was currently being reformed and was no longer an effective tool of social control. In oral evidence he agreed that there were 80-120,000,000 migrant workers in China some of whom had hukou registration where they worked and some of whom did not. There were competing views as to whether it should be retained or not. It could not be ruled out when considering internal relocation. The Tribunal also received evidence from Professor Fu, an Associate professor at Hong Kong University, who as an insider had access to the Peking University database. In one of his reports he said that to work legally a person should have a hukou but in practice the hukou was less significant than in the past. He noted that almost 10% of China's working population worked away from their home area without a proper hukou, (100 million out of a total of 1,330 million). They were not monitored by the authorities and although they lacked the legal right to be in the cities where they lived, they remained nevertheless, for as long as they wished. He said hukou now mainly functioned as a means of delivery of education and medical care for hukou owners rather than as an effective mechanism of state control.
In her submissions to the Tribunal in JC the appellant's representative drew attention to the US State Department Report for 2006, dated March 2007, which dealt with the need for hukou in rather less favourable terms, stating that it was particularly difficult for peasants from rural areas to obtain household registration in more developed urban areas. The report went on to state, however, that some major cities maintained programmes to provide migrant workers and their children access to public education and other social services free of charge. Many cities and provinces continued experiments aimed at abolishing the distinction between urban and rural residents in household registration documents.
The tribunal in JC also noted that in her evidence Dr Sheehan said that border police used computerised systems into which passport details was manually entered, which would bring up any visa information but not hukou information.
Overall it appears to us in the light of the reforms of the hukou system, particularly those described in the Immigration and Refugee Board of Canada paper, that a returned trafficked woman would not be obliged by the authorities to return to her place of origin.
Generally
The article entitled "Girls for Sale: Preventing Trafficking within China" dated 25 th November 2005 referred to a new project to prevent trafficking in children and youth for labour exploitation which was begun in April 2004 as the result of co-operation between the Chinese authorities and the ILO International Programme on the Elimination of Child Labour. The project started in Guizhou and was called the "CP-Ting Project". The article said that the project aimed to make migration channels safe for girls that wanted to leave their rural villages. It focused on adolescent girls and young women and put them in contact with decent employers that offered decent jobs. The article mentioned that through a partnership with the All-China Women's Federation (ACWF), the CP-Ting Project had mobilised a range of relevant ministries, at both national level and in five selected provinces, to develop a comprehensive set of interventions to prevent trafficking girls and young women, monitoring progress and document lessons learnt. The article stated that within the sending provinces, project partners were preparing for large-scale interventions in nine target counties, with a population from 300,000 to 1 million. The project and its partners would increasingly work on offering policy advice, contributing to the development of agreements on safe migration between sending and receiving provinces, procedures to licence amongst recruitment agencies, and a national policy plan to prevent trafficking. We take the view that it cannot be said that the Chinese authorities are oblivious to the problems of trafficked women returning to China and are taking positive steps to assist them.
The background evidence shows that the number of single mothers in China is growing. The article "Single Chinese mothers beset with trouble" in the China Daily dated 18 December 2004 describes the difficulties of two single mothers in particular and says that education is the most important issue for single mother families. The final paragraph of the report says that more people have realised the difficulties faced by single parent families, especially single mother families. Beijing and Tianjin have both set up single parents clubs to offer psychological counselling and parenting courses to single parents – including the divorced and widowed. The article by Howard W French entitled, "Single Mothers in China Forge a Difficult Path" dated 6 th April 2008 refers to the cases of three single mothers. It says that in a society where until quite recently pre-marital sex was often punished, the issue of single motherhood had been slow to enter the public arena, but now a new awareness of the issue was raising questions about the status of women in China as well as other rights issues like the hukou, or residents permit, a central tool of population control passed down from the Maoist era that restricted movement by linking people with towns of their birth. The article said that official statistics on the number of single mothers were unavailable in China but, with pre-marital sex now commonplace and women's earning power growing, particularly in the wealthy cities of the east, experts believed their numbers were rising fast, albeit from a small base. It quoted the case of one single mother who said that she checked out Shanghai's Public Security Bureau's website and discovered an item indicating that children born outside of marriage could apply for hukou. The article said that every province and major city had some leeway in how to apply the rules, although it did say for peasants and working-class mothers without much education, money or standing, choices could seem limited. In our view this evidence shows that hukou can be obtained for the children of single mothers. Very much depends upon where the application is made. The two articles quoted the experiences of six single mothers. In none of the cases was it suggested that it was thought that the women concerned had been prostitutes or had been trafficked. In these circumstances we are not satisfied that by reason of having a child a returned trafficked woman would be identified as someone who had been trafficked into prostitution.
A Human Rights in China report dated 30 th June 1995 states that the principal reasons for discrimination against trafficked women were that their families felt that this had caused them a loss of face, particularly the fact that the women had had sex with their buyers, regardless of whether this was forced upon them. The BBC News Report dated 28 th April 2008 says that according to state media, women who have been forced to work as prostitutes often faced prejudice if they return to their home villages. We take the view, however, that it is unlikely that a returned trafficked woman would be obliged to return to her place of origin or to her family, notwithstanding that her position would be significantly better if she had family support.
We accept the evidence of Dr Sheehan that although in China legally there is not such a thing as an "illegal child" i.e. a child born out of an "illegal pregnancy", and the law prohibits discrimination against children born outside marriage, nonetheless, as is stated in the reply to the Country of Origin Information Request, children of illegal pregnancies may not be registered or treated equally until their parents pay the fines imposed as punishment. Dr Sheehan conceded in cross-examination, however, that the fine to which a person who had no land and had no means was liable might very well be waived. This view is supported by the Extended Response to Information Request by the Immigration and Refugee Board in Ottawa, in dealing with Article 53 of the Criminal Law in relation to fines, which said that if a person truly had difficulties in paying because he had suffered irresistible calamity, consideration might be given according to the circumstances to granting him a reduction or exemption. The Ministry of Public Security (MPS) has stated that Chinese trafficking victims returning from abroad were not punished or fined. Even if the All-China Women's Federation offers only ad hoc intervention on their own initiative to protect women from punishment we see no reason why a returned trafficked woman should not herself approach the ACWF on return to China. Dr Sheehan conceded that the Chinese authorities were intent upon rescuing and rehabilitating trafficked women and girls. Given the efforts which are genuinely being made by the Chinese authorities to assist trafficked women we are not satisfied that it can be assumed that such a woman on return to China would be punished either for having left illegally or for having had a child without approval, particularly if she has no means.
We cannot accept the evidence of Dr Sheehan to the effect that women would only be employed to work the land if all the men had migrated or would only help out as a member of a family. In her article entitled "40 Million Missing Girls" dated 7 th October 2005, Laurel Bossen dealt with the three basic explanations for Chinese gender discrimination the first of which was that sons were necessary for heavy farm labour. She said that rural women had contributed to a large proportion of the farm labour in China for nearly 50 years. The fact that many men had left farming to women and migrated to towns and cities in search of better incomes since the 1970s undercut their "heavy labour" argument. It is apparent, therefore, that women in rural areas had carried out farm labour even before the migration of men to towns and cities in the 1970s. Furthermore it is interesting to note that in the HRIC report entitled "Implementation of the Convention on the Elimination of all Forms of Discrimination against Women in the People's Republic of China dated June 2006 it is stated that unmarried rural women participated in non-farming work at the same rates as men. Despite the economic downturn, which is affecting the PRC as well as other parts of the world, we take the view that there are opportunities, albeit limited, for returned trafficked women to obtain work in the PRC both in urban and rural areas.
As regards the risk of a returned trafficked woman facing persecution or serious harm by virtue of facing poor socio-economic conditions we have no difficulty in accepting that claims of this kind can in principle succeed. In its recent determination in AM & AM (armed conflict: risk categories) Somalia CG [2008] UKAIT 00091 the Tribunal observed:
In her second report, in a reference to the cost of decent urban accommodation Dr Sheehan said that the appellant would scarcely be able to afford it on either limited state benefit or a low wage from the type of job that she could realistically expect to get. She conceded, however, in cross-examination that the Chinese state at a local level had an obligation not to allow people to become destitute. She conceded that the Chinese state had an obligation to house the homeless and she said that they would not let people starve. Our attention has not been drawn to any background material confirming this opinion but on the other hand no background material has been drawn to our attention which demonstrates that this is not the case. Therefore despite our reservations about the evidence of Dr Sheehan we accept her evidence that this is the case. In these circumstances we do not accept that a returned trafficked woman would face utter destitution and an existence below a bare subsistence level.
Summary of general conclusions
Our general conclusions may be summarised as follows:
The position of the appellant on return to China
The risk of re-trafficking in her own home area
Paragraph 339K of HC 395 provides as follows:
We bear in mind that the appellant has been subjected to persecution by having been trafficked for the purposes of prostitution but for the reasons which follow we do think that there are good reasons to consider that the appellant will not be trafficked again No evidence has been adduced before us to show that those who were responsible for trafficking the appellant previously would be in any position to identify her and abduct her. CB has been aware that she is in the United Kingdom since he made the arrangements for her to travel here. There is no evidence that he has made any approach to her whatsoever while she has been in the United Kingdom and there is no evidence that he would be in a position to know that she had returned to China. The appellant is not somebody who has exhibited any signs of willingness to act as a prostitute. On the contrary, in her statement dated 31 st July 2007, as has been seen, she indicated that she had never wanted to be a prostitute and did not want to be in the same situation again. She said that she had never chosen to have sex with anyone. We see some force in Ms Finch's submission that it should not be assumed that the appellant is wise enough to avoid being trapped by, for example, false offers of employment, since it is apparent that through naivety she previously put herself in position where she was susceptible to being trafficked. Nonetheless in our view the appellant is clearly now a very resourceful young woman, having lived alone from the age of 10 to 14 or 15 years, and has accumulated considerable experience of fending for herself. She is now fully aware of the dangers in considering employment which offers to pay a considerable amount of money. From her statement we take it that she is now an adult woman who has repudiated the life she had been forced to live previously. In these circumstances we are satisfied that the appellant would not be likely to find herself in a situation where through naivety there was a real risk that she would be re-trafficked. Although it is the case that the province of Anhui is one of those from which the greatest number of women is trafficked, the appellant was not in fact trafficked from there. Dr Sheehan said that the population was between 50 and 60 million so that the chances of the appellant even being propositioned for re-trafficking are relatively small.
We have to consider, however, whether the appellant's resolution to avoid prostitution might be overborne by her circumstances. Dr Sheehan seemed uncertain as to what would happen to the appellant on arrival in the People's Republic of China. She conceded that she did not know to what extent the appellant would face a fine for having a child. In cross-examination she indicated that any penalty would be imposed at the local level in Anhui. She accepted that any fine to which she were liable might well be waived as she had no means to pay a fine. She made the point that the efforts of the authorities to re-habilitate trafficked women were hampered by the stigma attached to the identification of them as such in the eyes of their families. As indicated above the Human Rights in China report dated 30 th June 1995 states that the principal reasons for discrimination against trafficked women were that their families felt that this had caused them a loss of face. In the appellant's case she has no family so that this principal cause of discrimination would not arise. Dr Sheehan stated in evidence in chief that people would not know that the appellant had been trafficked if she returned to China, although the fact that she had a child and she was a migrant at such a young age might suggest a pattern of trafficking. She maintained that the women who were discovered to be prostitutes in China were often treated as criminals. Given the increasing number of single mothers in China, however, and the fact that the appellant would be returning from the United Kingdom where there are no limitations on young women having children even if unmarried, we take the view that it is unlikely that she would be known to have been a prostitute. Even if at the point of return the authorities elicited from her that she had been trafficked, then it is likely that they would see very little point in punishing her for having been trafficked out of China. Dr Sheehan herself acknowledged that if a returnee who had been trafficked could give information about snakeheads she would not be punished.
Although in Ms Finch's oral submissions to us it was asserted that the appellant had no employment experience, an examination of the evidence shows this not to be the case. In her interview on 15 th May 2007 for the purposes of an age assessment report on behalf of the London Borough of Camden, the appellant said that after she separated from the couple who looked after her for five to six months she went to a rural area outside the city and worked as a domestic worker in a farmer's family home. She said that sometimes she would also pick vegetables. She also said that after having escaped the men who sought the parcel that she had taken to Beijing, she started work washing dishes in a restaurant, after which she became a domestic cleaner for several months until she began work as a sex worker. In paragraph 6 of her witness statement dated 31 st July 2007, she confirmed that after she separated from the couple she went to a rural area outside the city of Sichuan and worked as a domestic worker. In paragraph 15 of the same statement she said she ended up back in Beijing where she worked in restaurants and obtained a forged identification card which showed her to be older which helped her obtaining work. During her age assessment interview she also said that she worked as a domestic servant after she had been trafficked. The assertion by Ms Finch is therefore not borne out by the facts of the appellant's case.
It was Ms Finch's contention, as set out in paragraph 53 of the skeleton argument, under the heading "Lone mother" that the hukou system coupled with her own personal circumstances would result in the appellant facing utter destitution and an existence below a bare subsistence level in any place or relocation. Reference was to Januzi v Secretary of State for the Home Department [2006] UKHL 5 in which the House of Lords was concerned with the issue of the reasonableness of internal re-location, but not to any background material. As already mentioned above in her second report, in a reference to the cost of decent urban accommodation, Dr Sheehan said that the appellant would scarcely be able to afford it on either limited state benefit or a low wage from the type of job that she could realistically expect to get. She conceded, however, in cross-examination that the Chinese state at a local level had an obligation not to allow people to become destitute. She conceded that the Chinese state had an obligation to house the homeless and she said that they would not let people starve. Although it was suggested that the appellant was allowed to live on the streets her evidence was that she left the area where she lived with her grandmother when her grandmother died. She did not assert that she ever approached the authorities for assistance and was refused help. In these circumstances the submission that if returned to China the appellant would face destitution and an existence below a bare subsistence level anywhere is not borne out by the opinion of Dr Sheehan. Moreover, there is no part of the background material which suggests that the appellant would become destitute. This applies not only to her own home area of China but also to any place of re-location.
Mention was made by Dr Sheehan of the intervention of the All-China Women's Federation to prevent the punishment of women who had been trafficked, having left China illegally. We take the view that the appellant would not be completely left to her own devices on return to China and would in fact have the opportunity of some sort of assistance through the auspices of the All-China Women's Federation. It was conceded by Dr Sheehan that assistance would be provided with subsistence and a roof over her head until such time as the appellant got on her feet. Despite the difficulties that there might inevitably be in her obtaining employment, we are satisfied that she has developed some useful skills which would assist in qualifying her for employment such as domestic work or agricultural work. It may very well be that she would encounter a degree of prejudice but, nonetheless, it is clear from the articles referring to the six single mothers mentioned above that, despite whatever prejudice they encountered, they were still pleased to have had their children, which demonstrates in our view that they had not encountered overwhelming prejudice. Moreover they had managed to make childcare arrangements whilst they worked which suggests that this would be open to the appellant to do as well. We are also satisfied that whatever the economic difficulties might be that the appellant would encounter, she would not be permitted to sink into destitution, either for herself or for her child.
Internal relocation
In paragraph 5 of his opinion in Secretary of State for the Home Department v. AH (Sudan) & Ors [2007] UKHL 49 Lord Bingham said that in paragraph 21 of his opinion in Januzi he summarised the correct approach to the problem of internal relocation in terms with which all his noble and learned friends agreed, as follows:
He went on to say that It was, or should be, evident that the enquiry must be directed to the situation of the particular applicant, whose age, gender, experience, health, skills and family ties may all be very relevant. There was no warrant for excluding, or giving priority to, consideration of the applicant's way of life in the place of persecution. There was no warrant for excluding, or giving priority to, consideration of conditions generally prevailing in the home country. He did not underestimate the difficulty of making decisions in some cases. But the difficulty lay in applying the test, not in expressing it. The humanitarian object of the Refugee Convention was to secure a reasonable measure of protection for those with a well-founded fear of persecution in their home country or some part of it; it was not to procure a general levelling-up of living standards around the world, desirable though of course that was.
Even if we were wrong in not being satisfied as to the extent of the risk of serious harm to the appellant in her own home area we take the view that there would be no real risk of serious harm as a result of being trafficked in an urban centre in China, such as Beijing or any other large urban centre. There is no evidence which suggests that the appellant would face a greater risk of falling into the hands of traffickers than anywhere else in China. While it is true that it was in Beijing that the appellant was attracted by the idea of earning a lot of money, it was in Sizhuan, rather than Beijing, that her work as a prostitute began. What we have said about the appellant's resolution to avoid the possibility of being re-trafficked, however, applies to wherever she might to relocate in China.
As to the reasonableness of expecting the appellant to relocate away from her own home area, we do not agree with Dr Sheehan's statement in paragraph 17 of her second report that the appellant would have to start from her home area or her oral evidence that still the only place in China where she could legally live was her home village in Anhui province. If, as is stated in the Canadian Country of Origin Research Paper, the hukou reforms have meant that the government can no longer restrict migrants' entrance to the cities, it follows that the appellant would be able to obtain legal, albeit temporary, urban registration. In her oral evidence Dr Sheehan stated that on return the appellant would be entitled to a personal identity card, which the police would not be able to withhold. The Refugee Board of Canada Paper indicates that that could be used to obtain a duplicate hukou booklet. We therefore take the view that the appellant would be able to relocate to a city such as Beijing. Beijing is a city where the appellant has lived and worked previously. The chances of obtaining employment of the sort of which she has had previous experience, such a working in a restaurant or doing domestic work would probably be greater than in her own home area. We see no reason why, even if she were to have to rely initially upon assistance from the local authorities, she should not be able to obtain work and fend for herself. Moreover, the chances of being able to obtain hukou for her child would also be greater since the evidence suggests a more enlightened policy is adopted towards single mothers and Beijing is a city where single mother clubs have been established. The appellant in any event would feel more comfortable in returning to a place where she was not known, given that she is a single mother. What we said about being satisfied that whatever the economic difficulties might be that the appellant would encounter, she would not be permitted to sink into destitution, either for herself or for her child in her own home area of China, also applies to any place of relocation and we do not consider, taking all of her personal circumstances into account, that it would be unreasonable for the appellant to relocate elsewhere in China away from her own home area.
In these circumstances we are not satisfied that the appellant would be at a real risk of persecution and/or serious harm if she were to be returned to the People's Republic of China.
Decision
The immigration judge made a material error of law in his determination of the appeals.
Accordingly the following decision is substituted.
The appeals on asylum grounds are dismissed.
The appeals on humanitarian protection grounds are dismissed.
The appeals on human rights grounds under articles 3 and 8 of the ECHR are dismissed.
Signed
Senior Immigration Judge Spencer
REASONS FOR THE DECISION THAT THERE IS AN ERROR OF LAW IN THE DETERMINATION
This is the reconsideration of an appeal against the respondent's decision made on 18 May 2007 to remove the appellant and her dependent child as illegal entrants following the refusal of their claim for asylum.
Background
The appellant is a citizen of China. She arrived in this country on 2 September 2006 using a false passport. She claimed asylum on 4 September 2006. Her child was born on 10 November 2006.
The appellant said that she was born on 15 July 1990. She was orphaned at the age of 6 and the grandmother she went to live with died when the appellant was 10. By early 2000 she was living rough on the streets of Sizhuan collecting and selling tins. By 2005 she had become involved in prostitution. When she was doing domestic work she had met a woman who said she could get her work which would pay handsomely. The appellant did not initially know what the work entailed. The appellant and other young girls were taken on a journey that took about two and a half hours and it was only later that it became apparent that she was caught up in prostitution. She was able to save some money and by November 2005 she had about 7,000 Yuan. She contacted an agent but he told her that all he could do with that amount was to send her to Russia.
The appellant left China in December 2005. In February 2006 she went to other countries but returned to Russia. She realised at that stage that she was pregnant but was afraid to tell her agent. She was taken to another country where she stayed in a house with Chinese men who had sex with her. She was then told that she had to leave and arrangements were made for her travel to this country and she claimed asylum. Her claim was refused by the respondent for the reasons set out in the Reasons for Refusal letter dated 18 May 2007. The respondent did not accept that the appellant was under the age of 18, that she qualified for asylum or that she would be at risk of serious harm on return to China.
The Hearing Before the Immigration Judge
The judge accepted that the appellant was a minor as she claimed. He found that she had become destitute, went into prostitution and was trafficked into Eastern Europe. He took into account the expert evidence that it was not uncommon for a trafficker to abandon young victims when they became pregnant. It was argued that the appellant would be at risk on return because she had left China illegally, would be the victim of discrimination as an unmarried mother with a child and would be at real risk of being re-trafficked for the purposes of prostitution. However, the judge was not satisfied that the appellant and her child would be at risk of treatment which would amount to persecution. He said that the appellant would be exposed to a range of social and economic disadvantages, but they would not amount to serious harm. He accepted that the appellant's child as the product of a single parent would suffer economic and social discrimination and be classed as a "black" child and that as a single parent the appellant's marriage prospects would be bleak as would her prospects of employment in urban areas.
So far as the risk of re-trafficking was concerned, the judge accepted that there were efforts under way to give sufficient protection in China to women in the appellant's circumstances. He noted that the US State Department Report on trafficking was critical of failings by the Chinese authorities in addressing this problem but it did point out that several progressive measures had been taken in earnest to meet the challenges posed by trafficking.
The judge summarised his conclusions by finding that there was a risk of the appellant being re-trafficked but he was satisfied that there existed a system that was able and willing to afford protection to a person in the appellant's circumstances. He accepted that the appellant would suffer a measure of hardship on return but found that it would not amount to persecution. The appellant was a minor and had a young child to care for but the judge found that there were no substantial grounds for believing that she would suffer serious harm on return.
Grounds and Submissions
In the grounds it is argued that the judge failed to give proper weight to paragraph 339K of the Immigration Rules providing that where a person had already been subject to persecution, this should be regarded as a serious indication of a well-founded fear unless there were good reasons to consider that it would not be repeated. The appellant had been found not only to have been trafficked from China in December 2005, but to be at future risk of re-trafficking on return. There was no evidence to indicate such a significant change to show that the appellant would be able to look to the Chinese authorities for protection. The judge had also failed to consider whether the protection offered would be practical and effective. The grounds refer to the UNHCR Trafficking Guidelines April 2006 and in particular to paragraphs 22 and 23 dealing with sufficiency of protection. They argue that the judge has merged the concepts of a well-founded fear with the need for sufficiency of protection and that he erred by not making a finding on whether the appellant was a member of a particular social group and in his finding that she had not established a private and family life in this country.
Reconsideration was refused by the Tribunal but ordered by the High Court (Forbes J) on the basis that the grounds relating to the risk of persecution and the sufficiency of protection had substance.
Ms Finch adopted the grounds. She submitted that the judge did not deal with the issue of whether the appellant had a well-founded fear of persecution as a discreet issue, separate from sufficiency of protection. Forced prostitution, particularly when the appellant was a minor, could be equated with institutionalised rape. Sexual violence fell within the definition of inhuman and degrading treatment prohibited by article 3 of the Human Rights Convention. Without a proper assessment of what the risk was to the appellant, it was impossible to make a finding on the sufficiency of state protection. She argued that the judge had adopted only parts of the expert evidence overlooking those which supported the appellant's case. He had not fully evaluated the objective evidence in the light of his own acceptance of the fact that the appellant was under 18 and would be returned to China with a baby of her own. He had referred to shortcomings in the protection offered but did not identify them and he had not dealt adequately with the expert evidence.
Ms Karunatilake submitted that the judge had properly focused on the risk to the appellant on return. He had looked at the various aspects of the risk: her illegal exit, the fact that she was unmarried with a child and the risk of re-trafficking. He had taken into account the harsh penalties against trafficking imposed in China. It was for him to assess as a question of fact whether the economic and social disadvantages suffered by the appellant would amount to persecution or serious harm. The judge had reached a decision properly open to him on the evidence.
The Material Error of Law
The issue for me at this stage of the reconsideration is whether the original Tribunal materially erred in law. The judge accepted that the appellant was a minor when trafficked from China and was still a minor. He found that she had become destitute in China and had been trafficked into Russia and Eastern Europe for prostitution and that her trafficker had arranged for her to come to this country after she became pregnant. She had a young child and the judge made a specific finding that there was a risk of her being re-trafficked. I am satisfied that the judge failed properly to take into account the expert evidence from Dr Sheehan in her report of 26 July 2007. It was her opinion that the appellant would be very vulnerable to exploitation by people traffickers if returned to China. She noted that the appellant's home province of Anhui was a major "sending" area for trafficked women and children, but the closest centre for the appellant would be the Xuzhou centre about 150 miles away from her home district and this would reduce the odds of the appellant becoming one of the small number of women who could be accommodated in such centres.
It was Dr Sheehan's view that if the appellant was compelled to work in the sex industry again she could expect little assistance from the Chinese police. The anti-prostitution campaigns of the PSB tended to target the women themselves rather than their employers/pimps or their clients. She commented that China was still a strongly patriarchal society and a young woman living alone without family support would be a vulnerable figure. The birth of the appellant's child would make her situation even more serious since it contravened child laws and policies on population control and family planning. The system of permits to give birth only applied to married couples. The appellant would be subject to financial and social penalties for the fact that her child had been born "outside the quota". The appellant would be subject to severe discrimination and considerable long-term social and economic advantage.
I am also not satisfied that the assessment of risk to the appellant and the availability of protection has taken into account her age and her own specific circumstances. There is certainly evidence to show that the Chinese authorities have taken action against trafficking, but the issue is whether the appellant in her particular circumstances would be able to access protection against the risk of being re-trafficked. The US State Department Report had placed China in a tier two watch category since 2005. The judge accepted that there were shortcomings in the protection offered by the Chinese authorities but particularly in the light of the appellant's past history, he did not explain why he took the view that effective and practical protection would now be available for her on return. For these reasons I am satisfied that the judge erred in law.
Both representatives agreed that if the judge had erred in law, the proper course would be for this reconsideration to be adjourned for a re-assessment of whether the appellant would be at real risk of serious harm and be able to look to the Chinese authorities for adequate protection on return. The judge's findings of primary fact have not been challenged and are to stand.