Migrant can stay in UK... as China ‘will sterilise her’

A CHINESE mother who feared she would be forced to undergo sterilisation if she returned to her homeland has won a legal battle to remain in the UK.

Lawyers acting for yan Zheng went to the Court of Session after the home Secretary rejected her asylum claim in April 2015.

The mother of two’s legal representatives said that to force her to go back to China would breach the european Convention on human Rights.

She arrived in Britain in August 2007 on a student visa. The single mother gave birth to two children during her time in Britain and claimed asylum in April 2014. In her claim, Miss Zheng said she was entitled to asylum because she had breached China’s family planning policies.

China had a one-child policy for many years as it tried to control the population, with family planning workers becoming notorious for their work of forced sterilisation and abortions. The policy was introduced in 1979 and began to be phased out in 2015.

The woman feared the Chinese government would force her to undergo a medical procedure that would stop her having more babies.

The UK Government refused her claim in 2015 on the basis that in the part of China where Miss Zheng came from, there was no risk of ‘physical coercion’ to meet family planning targets. The Government decision was upheld by a specialist immigration court.

But lawyers acting for Miss Zheng and for the Government both later accepted that the court had made the wrong decision with the evidence at its disposal, and she then went to an appeal tribunal.

yet the first tier appeal tribunal judge upheld the decision made by the immigration court on the basis of flawed evithis, dence. The case then went before the Court of Session and, in a written judgement issued yesterday, judges Lord Glennie, Lord Menzies and Lady Clark of Calton quashed the decision of the appeal tribunal not to allow Miss Zheng’s claim for asylum.

The judgment explains that the law in asylum cases states that immigration judges need to consider expert evidence called country guidance.

The guidance for China states there may be situations in which women who have violated Chinese family planning policies could be forced to undergo an abortion or sterilisation. yet despite the first tier tribunal appeal judge ruled that the woman could be sent back to China.

Lord Glennie wrote: ‘The judge concluded that nonetheless, the appellant’s situation did not engage either the Refugee Convention or eChR for a number of reasons which can be summarised.

‘In short, having been brought up in China, the appellant ought to abide by Chinese law; and in any event, she “need not have to submit to forced sterilisation and can agree to it instead”.’

Lawyers acting for the Government and Miss Zheng agreed that this decision was not legally sound.

yet the appeal immigration judge who heard the case then rejected Miss Zheng’s appeal – after reconsidering the evidence which had been placed before the first level tribunal.

But the judges in the Court of Session ruled that the upper level tribunal was not legally entitled to reconsider the evidence and Lord Glennie found that this meant the woman’s bid for asylum should be allowed.

he wrote: ‘The decision of the First Tier Tribunal is set aside and replaced by the following decision.

‘The appeal brought by the appellant to the First Tier Tribunal against the decision of the Secretary of State refusing her claim is allowed and in consequence, the decision of the Secretary of State refusing the appellant’s claim for asylum is quashed.’

Decision not legally sound