Yemeni national refused humanitarian protection because he can return to China

An appellant who is a Yemeni national who has lived in China since he was one year old ahs lost his appeal against the refusal of humanitarian protection on the grounds that he can return to China, despite the absence of evidence that China would grant him entry. The court has reiterated that in these circumstances an applicant will be expected to provide evidence that entry to the other country is not possible. The case is AAZA (Yemen) v Secretary of State for the Home Department [2025] EWCA Civ 705.

Background

The appellant is a citizen of Yemen who claimed asylum in the UK on 6 February 2020. The appellant had lived in China since he was one year old, although he held neither citizenship nor settled status there, and he said that he also feared the Chinese authorities. His claim was rejected on 25 November 2020, with the Home Office accepting that he would be at risk of generalised violence in Yemen but stating that he could instead return to China.

At the First-tier Tribunal the appellant argued that it was not reasonable to expect the appellant to return to China when he is not Chinese, does not hold a visa for China, and has no right to return there. The appellant also said that after he left China his family had come to the attention of the authorities there and his father had been arrested.

The appellant argued that the burden of proof did not shift to him to prove that he could get a visa for China. It was argued on behalf of the Home Secretary that the appellant was able to return to China and he had made no attempt to show that this was incorrect. 

On 19 July 2021 the First-tier Tribunal dismissed the claims relating to China. The tribunal found no risk of persecution and said that it was not possible to determine whether the appellant would be able to get a visa for China as no evidence had been provided.

The appellant appealed to the Upper Tribunal on the grounds that the First-tier judge had incorrectly shifted the burden of proof to the appellant and that the finding that he could go to China was irrational given his lack of a visa or residency permit. The Upper Tribunal referred to MA (Ethiopia) [2009] EWCA Civ 289 and said that the applicant will normally be expected to “take all reasonable practical steps to seek to obtain the requisite documents to enable him/her to return”.

The tribunal said that “the best evidence is a clear statement of the position of the Chinese authorities from them on this question” [note: I can’t imagine the Home Office providing such a statement were the positions reversed]. As there was no such evidence, the appeal was dismissed on 3 November 2022.

The Court of Appeal

On 10 April 2024 the Court of Appeal granted permission to appeal on all ten grounds, describing them as interlinked but all relating to the appellant’s ability to return to China. The court deemed the second appeals test to be met as there was “a real prospect of success and there is a compelling reason why the appeal should be heard given the risk to the Applicant”.

The Court of Appeal found that the First-tier Tribunal had given sufficient reasons for dismissing the claims relating to persecution or serious harm on return to China. This ground of appeal was dismissed.

On the point about the appellant’s ability to get a visa for China, it was accepted on behalf of the appellant at the hearing that the position is as set out in MA (Ethiopia) and that in the absence of any findings that the appellant would be at risk from the Chinese authorities, this argument could not succeed.

A new argument was raised in the Court of Appeal which was that paragraph 339C of the immigration rules referred to “country of return” (as opposed to country of origin) but this conflicted with article 15 of the Qualification Directive which says that only stateless people can be returned to their country of habitual residence. This is an issue first identified in the case of Abunar (Para 339C: “country of return”) [2018] UKUT 387 (IAC).

It was argued that the directive takes precedence over the rules and the applicant could therefore not be returned to China on that basis. However the court refused permission to raise this new point. In doing so, the court noted that the language in paragraph 339C had since been changed and now refers to “country of origin” and the point is unlikely to arise again.

The appeal was dismissed.

Conclusion

The Upper Tribunal said that if the appellant is able to get “confirmation he will be denied re-entry to China he may have grounds for making a fresh claim on the basis that the only country to be considered will be Yemen in relation to which it is already conceded he may be entitled to a grant of Humanitarian Protection.” This may now be the only course of action for this appellant.

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