COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ASYLUM AND IMMIGRATION TRIBUNAL
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE SEDLEY
SIR PAUL KENNEDY
| AA (Zimbabwe)
|- and -
|Secretary of State for the Home Department
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(instructed by Refugee Legal Centre) for the Appellant
Steven Kovats (instructed by Treasury Solicitor) for the Respondent
Hearing dates : 15 & 16 January 2007
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Lord Justice May :
Outline of the second Tribunal's determination
"The issue is whether the evidence establishes a real risk. The Appellant does not need to show a certainty or a probability that all failed asylum seekers returned involuntarily will face serious ill-treatment upon return. He needs to show only that there is a consistent pattern of such mistreatment such that anyone returning in those circumstances faces a real risk of coming to harm even though not everyone does. So is there evidence pointing to a substantial number of cases in the context of general evidence showing that involuntarily returned failed asylum seekers are at real risk of being subjected to serious ill-treatment on that account alone?"
"A person who is returned involuntarily to Zimbabwe having made an unsuccessful asylum claim in the United Kingdom does not face on return a real risk of being subjected to persecution or serious ill-treatment on that account alone. That is so whether or not the removal is escorted. Each case must be considered on its own facts. We reaffirm the country guidance in SM and Others (MDC Internal Flight Risk Categories) CG  UKIAT 00100. The evidence before us demonstrates that those at risk upon return to Zimbabwe continue to fall into the risk categories identified and set out in SM. This is subject to what we say about those whose military history discloses issues that will lead to further investigation by the security services upon return to Harare airport and those in respect of whom there are outstanding and unresolved criminal issues."
" no reasonable likelihood that the Appellant would be prevented from passing through the airport after the initial screening interview. He would then be able to return unhindered to live at one of the two rural homes available to him and his family".
Grounds of appeal 3 and 4
"3. If and in so far as the Tribunal required the Appellant to show a substantial number of cases where returned asylum-seekers had been subjected to ill-treatment notwithstanding the inferences to be drawn from the other evidence, the Tribunal misdirected itself in law and departed from the correct test of whether there was a real risk (taking all the evidence into account) of such ill-treatment.
4. If and in so far as the Tribunal drew an inference that returnees had not encountered ill-treatment from the absence of information about such returnees, it acted in a way which was not reasonably open to it."
Grounds 1 and 2
"The proposed monitoring of returnees under the pilot project described in the draft Memorandum of Understanding is of no direct relevance to the assessment of risk on return to any particular returnee as the IOM is not in a position to intervene to prevent such abuse should it occur."
Before us neither party sought to challenge that conclusion. We have also referred to evidence of and concerning NGO's and the Tribunal's conclusion relating to it.
"229. We find that the individual accounts of those who have been involuntarily returned to Zimbabwe, considered together and evaluated with care in the context of the evidence overall, do not establish or demonstrate a consistent pattern of such returnees being subjected to ill-treatment upon being involuntarily returned simply on account of being regarded as someone who has made an unsuccessful asylum claim in the United Kingdom. At its highest this evidence can only demonstrate that a very small minority of the 210 failed asylum seekers returned involuntarily may have been subjected to ill-treatment. Put another way, this does not point to a substantial number of cases in the context of the available evidence being subjected to ill-treatment simply on account of a person being identified as an involuntarily returned failed asylum seeker.
230. An examination of those accounts that survive scrutiny in any form at all reveals that there is only a very small handful of cases in which it is said that there was no reason other than mere fact of an involuntary return and the perception on the part of the authorities of being a failed asylum seeker that gave rise to these difficulties. Of those, some were bare assertions of that being the case with no real detail of the nature or severity of the ill-treatment or the circumstances in which it was inflicted. In our judgment, and for the reasons we have set out, little weight can be given to such accounts. We have explained why we approach the accounts with caution and why these accounts cannot be relied upon to demonstrate that returnees face a real risk of being subjected to serious ill-treatment on account only of being involuntarily returned failed asylum seekers.
231. This is in accordance with the evidence of procedures at the airport which suggest that while all deportees will be questioned, often in a hostile fashion, it is only in those cases where some further suspicion arises, above and beyond the asylum claim in the United Kingdom, that the deportee is moved on to the next stage of the process which involves interrogation which carries with it a real risk of serious ill-treatment."
"70. Drawing together this part of the evidence, considered in the context of the evidence overall including what we say about the evidence discussed below, we reach the following conclusions. Those being returned involuntarily to Zimbabwe will face a two-stage process. Upon arrival all deportees will be separated from ordinary travellers and will be interviewed. This is a screening or filtering process. It is assisted by having recourse to any intelligence that might be available. It is designed to distinguish between deportees about whom there is nothing else known or suspected to give rise to any interest and those who may be of interest because of a relevant military history, outstanding criminal issues or who may have some form of political profile, at whatever level. A relevant military history will be one in respect of which enquiries reveal aspects to be followed up such as being absent without leave or being involved in military activities outside Zimbabwe.
71. Those conducting this initial interview at the airport are likely to prepare a report upon each deportee. If there is nothing to suggest anything in a person's military history that requires further investigation or there are no outstanding criminal matters to be followed up and if there is no reason to suspect any involvement with political activity adverse to the regime the deportee will be allowed to pass through the airport. This process may involve the deportee being detained at the airport for several hours but carries with it no real risk of serious ill-treatment. The report is likely to be available to the CIO officers in the deportee's home area to inform the process of monitoring that is likely to take place thereafter.
72. Where the screening interview does give rise to any suspicion that the deportee has any form of adverse political profile or where it is established that there is a military history requiring further investigation or outstanding criminal matters it is likely that the deportee will be taken from the airport by the CIO, military intelligence or the police, depending upon the nature of the suspicion that has arisen, for the purpose of a rigorous interrogation. In view of what is known from the country evidence about the CIO that does given rise to a real risk that the deportee will be detained for a period of time and will be subjected to serious ill-treatment."
"The court emphasises that, in respect of a person deprived of his liberty, any recourse to physical force which has not been made strictly necessary by his own conduct diminishes human dignity and is in principle an infringement of the rights set forth in Article 3 (art 3) of the Convention."
The brief account in relation to R31 does not give us the impression that, properly considered and in context, the violence was trivial. In saying this, we take account of Mr Kovats' submission that the physical violence in Ribbitsch was gross and that the issue was whether the injuries had been sustained accidentally; and that other cases in which the court has found physical mistreatment of those in detention by state officials went well beyond that complained of in the case of R31. Mr Kovats referred in Ireland v United Kingdom (1978) 2 EHRR 25, paragraphs 92-130; Tomasi v France (1992) 15 EHRR 1, paragraphs 105-115; Selmouni v France (2000) 29 EHRR 403, paragraphs 82-89; and Balogh v Hungary,  ECHR 361, application 47940/99 (20 July 2004), paragraphs 10 and 45-46. The Tribunal went on to point out that the news report was clearly intended to fulfil a journalistic point, and that R31 could not be identified, so the Secretary of State was unable to test the account in any way. That certainly affects the weight to be given to the evidence. But, unless the account was to be wholly disregarded, the point in relation to the Tribunal's perception of the threshold for Article 3 violence for this returnee did need to be addressed.