Victory for Failed Tibetan Asylum Seekers
In a landmark ruling issued on 14th February 2007 the Asylum and Immigration Tribunal, found that returning failed Tibetan asylum seekers faced a real risk of torture or ill-treatment under Article 3 ECHR as well as persecution under the Refugee Convention 1951 because they would be regarded by the Chinese authorities as splittists. Mark Mullins represented the 3 test-case asylum-seekers.
Summarising their 28 page ruling the AIT concluded:
1. There are no figures for Tibetans who are returned from the West to the only two points of entry to China – Beijing and Shanghai – and they did not consider it safe to infer that the figures for those returned to China included any Tibetans.
2. Those Tibetans leaving China unlawfully on the Tibet/Nepal route are seen as being supporters of the Dalai Lama and therefore ‘splittist’.
3. Tibetans who, having left China unlawfully on the Tibet/Nepal route now face removal by the UK, are reasonably likely to be considered as splittists.
4. Accordingly, Tibetans who have made their way to the West having left China unlawfully on the Tibet/Nepal route face a real risk on return of detention and ill-treatment which amounts to persecution.
5. Tibetans who left China legally, and who did not leave because they had a well-founded fear of persecution, would not be likely to face persecution on return at the airports in Beijing or Shanghai or subsequently upon re-entry to Tibet region.
6. The Chinese regime in the Tibet region is repressive and the individual facts of each case must be considered carefully as it is a society where there is a considerable amount of surveillance. A Tibetan who is able to show he faces a real risk on return arising out of past adverse experiences in the Tibet region, should be able to succeed in his or her asylum claim, irrespective of what the position is as regards failed asylum seekers generally.
7. Unless the Secretary of State can show that their exit from China was lawful, and not on the Tibet/Nepal route, Tibetan retuned to Beijing or Shanghai are reasonably likely to face persecution on return and therefore the issue of an internal relocation alternative does not arise.
8. However, even if the issue of internal relocation did arise, given the terms of the Home Office’s Operational Guidance Notes and Country Information reports and the evidence pointing to likely state persecution of Tibetans who have left Tibet illegally via Nepal, there would not be any viable internal relocation alternative.