COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM
THE UPPER TRIBUNAL (IMMIGRATION AND ASYLUM CHAMBER)
AND ASYLUM AND IMMIGRATION TRIBUNAL
DIJ MANUELL, IJ CHARLTON-BROWN, DIJ DIGNEY and IJ GERREY,
AA/03852/2009, AA/10471/2008, AA/09201/2008, AA/06786/2009
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE LLOYD
LORD JUSTICE SULLIVAN
|- and -
|SECRETARY OF STATE FOR THE HOME DEPARTMENT
Mr Hugo Norton-Taylor and Ms Sandra Akinbolu (instructed by Messrs Wilson Solicitors LLP) for the 4th Appellant
Mr Alan Payne (instructed by the Treasury Solicitor) for the Respondent
Hearing date : 20 October 2010
Crown Copyright ©
Lord Justice Carnwath :
"The jurisprudence in relation to return to Zimbabwe has to date assumed that it is legitimate to require applicants, in order to avoid persecution, to demonstrate loyalty to Zanu-PF, itself a persecutory regime. That assumption appears to conflict with the decision of the Supreme Court in HJ(Iran) v SSHD  UKSC 31;  3 WLR 386."
"Firstly, the ratio of HJ (Iran) applies equally to cases concerning political opinion and RN is consistent with this. Thus, an individual found to hold genuine political beliefs cannot be required to modify their behaviour or deny their beliefs in order to avoid persecution. ("the pure HJ(Iran) issue")
Secondly, it is impermissible to require an appellant to actively profess a loyalty to a regime which he does not possess or otherwise lie to the authorities of the home country or other potential persecutors in order to avoid a condition of persecution. Again, the Zimbabwean country guidance decisions are consistent with this proposition. ("the extended HJ(Iran) issue")
Thirdly, the Tribunal in each of these linked appeals erred in their application of RN, irrespective of the first two submissions. This final submission may prove to be determinative of all four appeals." ("the RN issue")
The legal framework
"The evidence establishes clearly that those at risk on return to Zimbabwe on account of imputed political opinion are no longer restricted to those who are perceived to be members or supporters of the MDC but include anyone who is unable to demonstrate support for or loyalty to the regime or Zanu-PF. To that extent the country guidance in HS is no longer to be followed." (para 258)
"We observe here that there can be found within the extensive documentary evidence put before us other accounts of the means used by those manning road blocks to establish whether a person is loyal to the ruling party. For example, a person who was unable to produce a Zanu-PF card might be asked to sing the latest Zanu-PF campaign songs. An inability to do so would be taken as evidence of disloyalty to the party and so of support for the opposition. Clearly, a person returning to Zimbabwe after some years living in the United Kingdom would be unlikely to be able to pass such a test." (para 81)
"It remains the position, in our judgement, that a person returning to his home area from the United Kingdom as a failed asylum seeker will not generally be at risk on that account alone, although in some cases that may in fact be sufficient to give rise to a real risk. Each case will turn on its own facts and the particular circumstances of the individual are to be assessed as a whole. If such a person (and as we explain below there may be a not insignificant number) is in fact associated with the regime or is otherwise a person who would be returning to a milieu where loyalty to the regime is assumed, he will not be at any real risk simply because he has spent time in the United Kingdom and sought to extend his stay by making a false asylum claim." (para 230)
i) "the fact of having lived in the United Kingdom for significant period of time and of having made an unsuccessful asylum claim";
ii) returning to a home "in an area where the MDC made inroads into the Zanu-PF vote" at the recent elections; and
iii) "the fact of being a teacher or having been a teacher in the past".
"16. A question that arises from the guidance is this: what exactly is the significance of the fact that certain categories of asylum seekers will be in the heightened risk category? The fact that an asylum seeker falls into one or more of the enhanced risk categories is not of itself sufficient to justify the grant of asylum as paragraph 230 of the decision in RN, reproduced above, makes clear. The question is whether he faces a real risk of persecution on return; he will do so from the militia gangs unless he is able to show loyalty to the governing party.
17. So the onus is on the applicant to show that there is a real risk that he will not be able to demonstrate the required loyalty. Falling into a heightened risk category does not of itself constitute such evidence. Being a teacher or a failed asylum seeker is plainly not incompatible with being a Zanu-PF supporter or activist. It does, however, mean that the applicant will on return be likely to be subject to heightened scrutiny. If, for example, the authorities in Zimbabwe know that an asylum seeker was previously a teacher, they are more likely to start from the premise that he is likely to be hostile to the regime."
"The Tribunal must take account of all the evidence and in some cases a real risk of persecution will be established notwithstanding that the applicant's account was largely or even – exceptionally, no doubt - wholly disbelieved." (para 18)
"20. In that case the appellant, a seventeen year old girl, had given an account of how she had left Eritrea but it was disbelieved. It was accepted that if she had left illegally she would be at risk of persecution on return. It was also accepted that it was more probable than not that she would have left that way since statistically that was the most likely route by which girls her age would have managed to leave the country. But some students her age could also leave legally.
21. The Court of Appeal held that the fact that it was likely that a seventeen year old girl would have left illegally did not show that this particular girl had done so, and once her evidence was rejected, there was no other evidence available to the court to show that she may in fact have fallen into that general category. The only established facts were her sex and age, but they merely identified her as falling into the category of those who would be likely to have left illegally; they gave no clue one way or the other as to whether she had done so. ..."
"23. An applicant for asylum is not, therefore, to be punished for giving false testimony. He is not to be denied asylum if he otherwise has a good asylum claim on the facts which are accepted to be true or likely to be true. But the absence of credible evidence from the applicant may result in a situation where the Secretary of State, or on appeal the AIT, has insufficient material from which to infer that there is a real risk of persecution. Since the onus is on the applicant to make good the claim, it perforce must fail."
The HJ(Iran) point
"The proposition Mr Dove advances is that when determining whether or not to grant asylum, the AIT should assume that an asylum seeker will tell the truth about his political views when questioned in his home country about them, as he almost undoubtedly will be. If in fact he is not loyal to the regime, he will have to reveal that fact and that will necessarily render him liable to persecution. Accordingly, his asylum claim must succeed. He cannot be expected to lie in order to avoid persecution. This is so even in cases where he is not politically active and indeed even if he is relatively uninterested in politics…." (emphasis added)
The "far-reaching" consequence of this submission was that anyone who could show that he or she was not in fact not a supporter of Zanu-PF would be entitled to asylum (para 31).
"The evidence… suggests that she manufactured hostility to the regime to bolster her asylum application. So it cannot be assumed that she would face the dilemma of having to conceal her true political opinions in order to avoid persecution…" (para 56)
In the other case, the tribunal found that the appellant had "not even managed to exclude the possibility that she was a Zanu-PF supporter".
TM – the facts
"Mr Dove submits that given the positive factual findings made by the judge, the only permissible conclusion in the light of RN is that the claim for asylum should succeed. Mr Dove submits that it is not disputed that the appellant fell into a number of the high risk factors - a teacher, a failed asylum seeker from the UK who had spent many years here, and someone with some, albeit limited, anti-government activity sur place… Apart from the visits [which had taken place before the changes considered in RN] there was no evidence of any other counterveiling factor which could justify the conclusion that there was no real risk of persecution on return."
"... this factor merely increased the risk of persecution; it did not establish that risk in her case. The judge was entitled to conclude that her status as a teacher had not in fact caused her problems and was unlikely to do so. Moreover, the fact that the appellant had family in Zimbabwe who were apparently of no concern to the authorities lent support to the judge's conclusion that she was not at risk." (para 55)
"There is no credible finding that she or any of the members of her family have been involved in activities in support of the MDC which will be treated as likely to cause the disapproval of Zanu-PF, the regime, the militiamen or anyone else. There is no credible evidence of the family's political activities or harassment following her departure from Zimbabwe. We are left to speculate as to the appellant's political allegiances or those of her family members. She has not, for example, even managed to exclude the possibility that she was a Zanu-PF supporter whilst in Zimbabwe. Into this evidential vacuum, there is no room to create a positive case that the appellant will find it difficult to demonstrate loyalty to the regime. This is not a matter for inference. Inferences where possible and necessary arise from a firmly established springboard in the form of a factual matrix made out by credible evidence." (para 42)
"The accepted features of her case statistically put her in an enhanced risk category, but there was no evidence from which the AIT could infer that she personally fell into that category, just as in GM the fact that the appellant was a seventeen year old put her statistically in the category of someone who would be likely to have left Eritrea illegally and therefore be at risk, but there was no evidence to place her personally into that category…." (para 74)
TM - summary
First submission - the "pure" HJ(Iran) point
"No Contracting State shall expel or return ('refouler') a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion." (emphasis added)
"80. If an applicant holds political or religious beliefs that are not favoured in the country of nationality, the chance of adverse consequences befalling that applicant on return to that country would ordinarily increase if, on return, the applicant were to draw attention to the holding of the relevant belief. But it is no answer to a claim for protection as a refugee to say to an applicant that those adverse consequences could be avoided if the applicant were to hide the fact that he or she holds the beliefs in question…"
Second submission - the extended HJ(Iran) point
i) Apart from HJ(Iran), is it ever relevant for the tribunal of fact to inquire whether a claimant would be willing to lie about his political beliefs in order to avoid threatened persecution?
ii) How is the answer affected by the decision in HJ(Iran)?
"The Secretary of State does not suggest (and has never suggested) that Adjudicators should simply proceed on the basis that [an] individual can lie about his background and circumstances. The right approach is to assess what questions are likely to be asked of the individual and what his responses are likely to be."
The tribunal agreed with this approach, but added:
".. it will be for an Adjudicator in each case to assess what questions are likely to be asked and how a returnee would respond without being required to lie…" (para 85-6)
Subsequent decisions in the tribunal (including RN itself, para 236) have repeated, without discussion, the formula that claimants "are not expected to lie" when questioned by the authorities. The "IK point" has also been referred to without criticism or discussion in this court. Thus, for example, in BK(Congo) v Secretary of State  EWCA Civ 1322 para 12, the court referred to "the IK point", but held that there had been no departure on the facts of the case before it.
"…in all asylum claims there is ultimately a single question to be asked: is there a serious risk that on return the applicant will be persecuted for a Convention reason?...
The critical question is: if returned, would the asylum seeker in fact act in the way he says he would and thereby suffer persecution? If he would, then however unreasonable he might be thought for refusing to accept the necessary restraint on his liberties, in my judgment he would be entitled to asylum."
Conversely, if the tribunal finds that, in spite of, or perhaps because of, his own political indifference, the claimant would find no difficulty in professing loyalty to the regime, and that this would in practice protect him, then (subject to HJ(Iran)) there seems no reason in principle why they should not give effect to that conclusion.
"… if a gay man would live discreetly on return and thereby avoid being harmed or persecuted on account of his sexual orientation, he could not have a well-founded fear of persecution…" (para 109, emphasis added)
Later he referred to the leading New Zealand case, Refugee Appeal No 74665/03  INLR 68, which raised the question whether "the proposed action by the claimant is at the core of the right or at its margins":
"If the proposed action is at the core of the right and the restriction unlawful, we would agree that the claimant has no duty to avoid the harm by being discreet or complying with the wishes of the persecutor. If, however, the proposed activity is at the margin of the protected interest, then persistence in the activity in the face of the threatened harm is not a situation of 'being persecuted' for the purposes of the Refugee Convention."
Sir John Dyson JSC commented:
"It is open to question how far the distinction between harmful action at the core of the right and harmful action at its margin is of relevance in cases of persecution on grounds of immutable characteristics such as race and sexual orientation. But it is a valuable distinction and there may be more scope for its application in relation to cases concerning persecution for reasons of religion or political opinion." (para 116-7)
In the majority judgment, Lord Rodger also saw the attractions of such a "human rights framework" to determine the limits of what an individual "is entitled to do and not to do"; but he did not find it necessary to reach a conclusion on this aspect (para 72). We would add that his earlier comments on what was involved in the right of a gay man to live "freely and openly", make it hard to see where he would have drawn the line between "core" and "marginal" actions or activities (para 78).
"41. On that analysis, there is a good case for saying that where the activity which would create the risk of persecution is the need to deny disloyalty to a political party by someone whose political interests or activities are of marginal interest to their lives, this engages only the margins of their human rights and the AIT would be entitled to conclude that they would in fact be, and could be expected to be, less than frank with the Zimbabwean authorities. They would not be required to modify their beliefs or opinions in any real way. It is one thing for a person to be compelled to deny a crucial aspect of his identity affecting his whole way of life, as in HJ. Furthermore, the individual is then forced into a permanent state of denial. The Supreme Court found it unacceptable that someone should have to live a lie in order to avoid persecution. It does not necessarily follow that in no circumstances can someone be expected to tell a lie to avoid that consequence."
As already noted, Elias LJ did not feel it necessary to reach a conclusion, because the cases failed on the facts; the appellants had failed to show that they would in fact need to lie in order to profess loyalty to the regime.
"By contrast, the same considerations do not arise in relation to an applicant who has not established that the protected right is central to his identity. It cannot, for example, be said that an applicant who holds no political opinion, but who decides to profess support for a particular regime in order to avoid persecution, is either having to make a fundamental change to his behaviour, or having to renounce holding a protected right in order to avoid persecution. This is particularly so where, in contrast to the situation considered in HJ(Iran), such an applicant only faces a real risk of occasionally having to provide such an assurance of loyalty (as opposed to living a life involving a complete denial of a fundamental protected right).
… the degree of political involvement, and consequent impact of any restrictions of freedom of political expression, must be assessed specifically in the context of each individual appeal. There must be a difference between the human rights violation suffered by (eg) a committed political activist who cannot organise or join in a demonstration for fear of police brutality, and a person who takes steps to avoid that area because he has no wish to be caught up in violence and only has a mild interest in the demonstration. The "actions" of the two individuals are of a completely different order. On one level, the right which the Convention is being asked to uphold, in both cases, is the right to freedom of political expression. But for one person, it forms a core part of their identity; for another, it plays only a marginal role."
Third submission - incorrect application of RN to the facts
"The mere fact of the Appellant's long absence from Zimbabwe is not likely to expose her to a real risk of persecution, as opposed to the possible nuisance of being pestered for small bribes as is said to happen sometimes to those who have returned from abroad. She is in a position to explain that she has never been politically involved at home or abroad, should anyone see fit to enquire. As to the suggestion that claiming asylum would of itself be seen as an act of disloyalty, she can explain that she claimed asylum simply in the hope of avoiding removal from the United Kingdom, which the Upper Tribunal considers a true statement. The Upper Tribunal finds that any risk of persecution which the Appellant faces on return to Zimbabwe is less than a real risk. The asylum appeal must be dismissed." (para 25)
"Finally, in terms of whether or not this appellant can demonstrate positive support for/loyalty to ZANU-PF, it seems clear that she herself has not been linked with the MDC as she has claimed, given her lack of credibility throughout. As previously stated she appears to have been able to live in Zimbabwe without problems since her mother left the country in 2002 and quite frankly, given this individual's complete lack of credibility and indeed her inclination to lie as and when required, as the original Immigration Judge pointed out, no doubt she would be prepared to lie again in the future to the authorities on return to Zimbabwe about any political affiliation she might have." (para 23)
"In the circumstances, since we do not find that the Appellant's father was killed as claimed, or that he is dead, we note that both he and the Appellant's mother were members or supporters of Zanu-PF. We note that the other aspects of the Appellant's claim were rejected by Immigration Judge Price, and since we have found the Appellant not to be a credible witness, it follows that we agree with the conclusions reached by that Immigration Judge. We also bear in mind what was said by the Tribunal in RN, particularly Paragraph 246, where it was said that,
"An Appellant who has been found not to be a witness of truth in respect of the factual basis of his claim will not be assumed to be truthful about his inability to demonstrate loyalty to the regime simply because he asserts that. The burden remains on the Appellant throughout to establish the facts up which he seeks to rely".
Since we find that the Appellant's father and mother were supporters of Zanu-PF, and had been over apparently many years, we can find nothing to indicate that the Appellant and his dependants would be unable to demonstrate loyalty to Zanu-PF if they were returned to Zimbabwe. In these circumstances, it follows that we dismiss the appeal on asylum grounds." (para 17)
"On the Appellant's own evidence he was not politically engaged before he left Zimbabwe...
Looking at the evidence in the round, I do not find the Appellant has shown even to the lower standard that he is likely to be at risk of persecution or ill-treatment on account of his political opinions or imputed political opinions whether on arrival at port or subsequently in his home area or elsewhere in Zimbabwe. He will be able to account for his absence by reference to the studies he has pursued and the break-down of his marriage…" (para 47, 49)