European Court of Human Rights

FOURTH SECTION

Application no. 67449/11
L.M.
against the United Kingdom
lodged on 31 October 2011

STATEMENT OF FACTS

THE FACTS

A.  The circumstances of the case

The facts of the case, as submitted by the applicant, may be summarised as follows.

The applicant is a Zimbabwean national who applied for and was granted a visit visa for the United Kingdom in Zimbabwe and entered the United Kingdom on 21 January 2007. He sought asylum in March 2007. The basis of his claim was that he had been a member of the Movement for Democratic Change (MDC), an opposition political party, since 2000. He also claimed to have contributed financially to the party and, through his position as director of a steel company, to have provided the party with transportation on a regular basis. He claimed to have been regularly beaten up and threatened by members of ZANU-PF, the ruling party, and to have had the garage of his home petrol bombed. He claimed that after being detained and beaten on three occasions in 2006, he had gone into hiding in November while he obtained a visa for the United Kingdom.

The applicant’s asylum claim was refused in May 2007. The Home Office acknowledged that MDC activists faced mistreatment by the Zimbabwean regime. However, the applicant’s account of MDC involvement and consequent persecution was not accepted as being credible. There were various implausible elements to his story: his passport and various South African visas indicated that he worked as a driver, not a director; his purported employee ID from the steel company did not appear to be genuine; and his passport clearly indicated that he had passed in and out of Zimbabwe repeatedly. It was not accepted that he would have been able to do so without difficulty had the regime been as interested in him as he claimed. His passport also clearly showed that he had travelled to Zambia twice between November 2006 and January 2007, the period during which he claimed to have been in hiding. He had also been able to leave Zimbabwe for the United Kingdom without apparent difficulty, which it was not believed he would have been able to do had he been of serious adverse interest to the authorities, as an active contributor to the MDC would be. The applicant’s failure to claim asylum upon arrival in the United Kingdom, and statement to the immigration authorities that he was on a business trip, further detracted from his claim to have fled Zimbabwe in fear for his safety.

The applicant’s appeal against this refusal was heard by the Asylum and Immigration Tribunal (as it then was) in June 2007. The Immigration Judge found the applicant’s account to be far from truthful and did not accept that he had a fear of persecution as a result of his previous involvement with the MDC in Zimbabwe. As to his claimed involvement with the party in the United Kingdom, the judge found that there was no independent evidence of such and rejected this claim as well. Although it was accepted that current conditions in Zimbabwe were very poor, given that the applicant had been found to be of no interest to the authorities and had family and previous, well-paid employment in Zimbabwe, it was not believed that his return would breach his rights.

The applicant made further submissions in January 2009, which were accepted as a fresh claim for asylum, but refused in October 2010. He claimed that his brother had been shot and his wife beaten by ZANU-PF, for refusing to disclose the applicant’s whereabouts. He had produced medical reports and photographs to support this claim. He also claimed to have been involved in sur place activities in the United Kingdom in support of the MDC. However, the Home Office found that the applicant had been inconsistent, claiming on the one hand that his wife had been beaten for refusing to disclose his whereabouts, and on the other that ZANU-PF had included his name on a list of those who were in the United Kingdom and believed to be undergoing military training there. The medical report, the photographs purporting to be of his wife and the applicant’s account of how she had been beaten did not tally. The evidence relating to his brother was similarly discrepant, and the evidence in support of his claimed sur place activities was not considered to be convincing. Reference was made to the most recent case-law, but it was not considered that the applicant faced a real risk of being identified, either at the airport or afterwards once returned, as being of adverse interest to the Zimbabwean regime. It was not accepted that the applicant would not be able to demonstrate loyalty to the regime. He owned his own home, as did his mother, who also received rental income. Background country evidence indicated that most Zimbabweans not favoured by the regime had few possessions or resources left; it was not therefore believed that the applicant and his family were viewed as hostile to the regime.

The applicant’s second appeal was heard by the First Tier Tribunal on 9 December 2010. The Tribunal considered itself to be bound by, and quoted extensively from, the most recent country guidance case on Zimbabwe, RN (Returnees) [2008] UKAIT 00083. The Tribunal in that case had found as follows:

“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 ... The fact of having lived in the United Kingdom for a significant period of time and of having made an unsuccessful asylum claim are both matters capable of giving rise to an enhanced risk because ... such a person is in general reasonably likely to be assumed to be a supporter of the MDC and so, therefore, someone who is unlikely to vote for or support the ruling party, unless he is able to demonstrate the loyalty to ZANU-PF or other alignment with the regime that would negate such an assumption.”

The Tribunal in that case did not consider that the living conditions in Zimbabwe, as poor as they were, would reach the high threshold of Article 3.

The Tribunal which considered the applicant’s appeal found that there was no reliable evidence to challenge the adverse credibility findings made at the applicant’s last appeal in respect of his claims to have been actively involved with MDC in Zimbabwe and involved with the party sur place in the United Kingdom, and as such to be unlikely to be able to demonstrate the necessary loyalty to ZANU-PF. The “new evidence” submitted by the applicant was so unconvincing that it supported, rather than undermined, the previous adverse credibility findings. He had not addressed the points made against him by the Home Office. There was still no independent evidence to support his claimed involvement with the MDC in the United Kingdom. In oral evidence, the applicant failed to explain away the discrepancies in his account of his wife and brother having been attacked because of him. The Immigration Judge could not therefore accept that the applicant was an MDC member, in Zimbabwe or in the United Kingdom. He accepted that the applicant’s long residence in the United Kingdom and failed asylum claim could potentially enhance the risk of ill-treatment. However, as the applicant had failed to establish that he was at risk in the first place as a result of imputed political opinion, there was no risk to be enhanced by these factors. The applicant had not established that he would be unable to demonstrate loyalty to the regime. To the contrary, he had a wife, mother and several children in Zimbabwe and his evidence tended to indicate that he owned considerable property. Given the extreme privation suffered by a large proportion of the Zimbabwean population, it was considered that anyone who was able to retain property was likely to be viewed as pro-regime.

The applicant sought permission to appeal to the Upper Tribunal, which was refused on 16 February 2011 by a Senior Immigration Judge of the First Tier Tribunal, and on 1 June 2011 by the Upper Tribunal. He made further representations on 27 and 28 October, which were rejected on 30 October 2011. He also sought judicial review of the decision to remove him, which was refused by the High Court on 28 October 2011. He submitted representations under Article 8 on 31 October 2011, which were rejected. None of these decisions have been submitted to the Court, despite being specifically requested on 8 November 2011.

B.  Relevant domestic law

The most recent country guidance case on Zimbabwe is EM and Others [2011] UKUT 00098, in which it was held that,

“As a general matter, there is significantly less politically motivated violence in Zimbabwe, compared with the situation considered by the AIT in RN. In particular, the evidence does not show that, as a general matter, the return of a failed asylum seeker from the United Kingdom, having no significant MDC profile, would result in that person facing a real risk of having to demonstrate loyalty to the ZANU-PF ...

A returnee to Harare will in general face no significant difficulties, if going to a low density or medium-density area. Whilst the socio-economic situation in high-density areas is more challenging, in general a person without ZANU-PF connections will not face significant problems there (including a “loyalty test”), unless he or she has a significant MDC profile, which might cause him or her to feature on a list of those targeted for harassment, or would otherwise engage in political activities likely to attract the adverse attention of ZANU-PF ...

In certain cases, persons found to be seriously lacking in credibility may properly be found as a result to have failed to show a reasonable likelihood (a) that they would not, in fact, be regarded, on return, as aligned with ZANU-PF and/or (b) that they would be returning to a socio-economic milieu in which problems with ZANU-PF will arise. This important point was identified in RN, and remains valid.”

The appellants in that case have sought leave to appeal to the Court of Appeal, and the application for permission is pending.

COMPLAINT

The applicant complained that his removal to Zimbabwe would endanger his life and safety and thus breach Articles 2 and 3 of the Convention.

QUESTIONS TO THE PARTIES