COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ASYLUM AND IMMIGRATION TRIBUNAL
 UKAIT 001144 CG
 UKAIT 00159
Strand, London, WC2A 2LL
B e f o r e :
Vice-President, Court of Appeal (Civil Division)
LORD JUSTICE LAWS
SIR CHRISTOPHER STAUGHTON
- and -
Secretary of State for the Home Department
|- and between-
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Secretary of State for the Home Department
Smith Bernal WordWave Limited
190 Fleet Street, London EC4A 2AG
Tel No: 020 7421 4040 Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Andrew Nicol QC and Mark Henderson (instructed by the Refugee Legal Centre) for the Respondents AA and LK
Crown Copyright ©
|2. The issues and the facts in the case of AA.||2|
|3. The country guidance case of SM||6|
|4. New evidence following SM: why AA came to be heard||12|
|5. The evidential material in AA and the Home Office's stance||15|
|6. The evidence about the procedures at Harare Airport and the numbers of passengers arriving at that airport from the UK in 2004-5||20|
|7. The evidence about the CIO||30|
|8. The evidence about the treatment of identifiable involuntary returnees||33|
|9. The evidence about the political situation in Zimbabwe in 2005||41|
|10. Prof Ranger's evidence about the risk to involuntary deportees||47|
|11. The evidence of the Zimbabwe-based NGOs||53|
|12. AA: The AIT's conclusions||65|
|13. The first argument on the appeal: The AIT misunderstood some of the evidence||70|
|14. The second argument on the appeal: The AIT misapplied a concession||73|
|15. The third argument on the appeal: AA is not a refugee||79|
|16. The third argument: a Preliminary Objection||80|
|17. The third argument: substance||86|
|18. The third argument: the Danian case||96|
|19. The third argument: safe voluntary return on the facts?||101|
|20. A postcript to the third argument: ECHR Art 3||107|
|21. The appeal in LK||109|
Lord Justice Brooke: This is the judgment of the court, to which Laws LJ has made a significant contribution.
2. The issues and the facts in the case of AA
"[T]here is no doubt in our mind that the Appellant's claim to asylum was, in all its substantive parts, fraudulent, and that the Appellant himself has been deliberately dishonest in almost all his dealings with the authorities in this country."
3. The country guidance case of SM
"… We … approach with caution the reports that a number of recent returnees have never re-appeared once they were taken from the plane by CIO agents and that others have disappeared. No names or details have been provided and if, as Professor Ranger says, the returns have been carefully monitored, we would have thought such details would be available.
Nonetheless the Tribunal is satisfied in the light of the statements made by the Zimbabwean authorities that returnees are regarded with contempt and suspicion on return and do face a very hostile atmosphere. This by itself does not indicate that all returnees are at real risk of persecution, but that returnees are liable to have their background and circumstances carefully scrutinised by the authorities. We are satisfied that those who are suspected of being politically active with the MDC would be at real risk. We agree with Professor Ranger that if the authorities have any reason to believe that someone is politically active the interrogation will be followed up. There is a reasonable degree of likelihood that this will include treatment sufficiently serious to amount to persecution."
4. New evidence following SM: why AA came to be heard
"In the present appeal, the Appellant needs to establish a real risk to returned asylum seekers. He does not need to show that all, or nearly all, returned asylum seekers are harmed. He needs only to show that all returned asylum seekers are at real risk of harm. He can do that, as a matter of logic (and in our judgment as a matter of law) by any evidence that properly leads to the conclusion in question."
5. The evidential material in AA and the Home Office's stance
(a) For the claimants
(i) Two statements by Sarah Harland of the Zimbabwe Association;
(ii) Three statements by Zimbabwean refugees (two of whom were called "Witness 5" and "Witness 6") who had worked at Harare Airport;
(iii) Statements by a man we will call "Witness 1", by a local MP, and by the wife of an involuntary returnee describing what she had been told about his treatment at Harare Airport;
(iv) Two expert reports by Professor Ranger, and a report by a different expert, Joanna McGregor, on conditions in Zimbabwe;
(b) For the Home Office
(v) A long statement by Mr Walsh, a senior civil servant, responding in particular to the 189-page bundle of material submitted by the RLC on 12th July.
This material was all treated as having being filed at the AIT in the AA case. By 7th October 2005, when the hearing in that case commenced, the following further evidence had been filed:
(a) For the Home Office
(i) A second statement by Mr Walsh, and a statement by Mr Walker, exhibiting a report on a visit paid to Harare in early September ("the field report").
(b) For AA
(ii) Four statements made on 3rd October and one statement made on 4th October by senior representatives of three of the organisations whose views were recorded in the field report;
(iii) An undated statement by Witness 7, supported by a recent medical report, and an undated statement by Witness 8, made in support of his application for asylum which was granted in April 2003, about their treatment as involuntary returnees to Zimbabwe.
i) The evidence about the procedures at Harare Airport, and the numbers of passengers arriving at that airport from the UK in 2004-5;
ii) The evidence about the CIO;
iii) The evidence about the treatment of identifiable involuntary returnees;
iv) The evidence about the political situation in Zimbabwe in 2005;
v) Professor Ranger's evidence about the risks to involuntary returnees;
vi) The evidence of the Zimbabwe-based NGOs.
We have referred to "involuntary returnees" as a term embracing both failed asylum-seekers who are unwilling to return to Zimbabwe voluntarily and others, such as over-stayers, who have outstayed the period when they were permitted to remain in the UK, and are similarly unwilling to return voluntarily, although they have never claimed asylum. On this appeal Mr Burnett QC, who appeared for the Secretary of State, complained that the AIT had not been careful to distinguish between these two categories of involuntary returnees and had thereby made a material error of law.
6. The evidence about the procedures at Harare Airport and the numbers of passengers arriving at that airport from the UK in 2004-5
"[X] told me that all the returned asylum-seekers are questioned because they are all considered to be a security risk. It is believed by the security services that the returned asylum-seekers have been trained in military procedures and are now being sent back to destabilise the country. He told me that they are all handed over to the CIO who carry out thorough questioning and then decide what should be done. [X] went on to tell me that those asylum-seekers who are released are nevertheless kept under surveillance. They are made to attend the ZANU-PF meetings in their area, wear ZANU-PF T-shirts, denounce the MDC and, in some cases, are required to report to the police station."
7. The evidence about the CIO
8. The evidence about the treatment of identifiable involuntary returnees
i) four cases where the individual had shown a high degree of commitment to contacting the Association prior to removal, and where they had established lines of communication through relatives or friends which they had expected to function. The absence of any news led the Association to believe that the removees had been detained or had come to harm, and that this was the reason why they had been unable to contact them;
ii) three cases (described as Cases A, C and E) in which violence was alleged;
iii) eleven cases (described as B, D and F, G, H, J, K, L, M, N and O) in which violence was not alleged.
i) Case F. Although questioned and released at the airport, he was later interrogated aggressively at the police station at which he was required to report. When ordered to return for interrogation by the CIO, he fled to South Africa instead.
ii) Case H. Went missing for several days after his removal. His sister did not want to talk to the Zimbabwe Association about the missing days.
iii) Case N. Was released from the airport after questioning, but was now in hiding, moving very frequently from address to address to sleep.
iv) Case O. Was released from questioning at the airport when a relative who worked there intervened on her behalf. She went into hiding, and people came looking for her at her old address which she had supplied to the authorities.
"He has not been cross-examined on his evidence. It records treatment of a returnee who had not in fact claimed asylum before being returned but nonetheless, assuming the account to be true, shows the interest of the CIO in returnees and the extent of the mistreatment when a full investigation is carried out."
"This witness is the returnee referred to in paragraph 41 in SM where the Tribunal commented about the doubts it felt about this account, but that comment must be seen in the context of the very limited evidence produced at that hearing as compared with the further evidence produced at this hearing. This evidence shows how one returnee is said to have been treated in 2002 and forms part of the background picture... [The situation] appears to have deteriorated [since 2002] for anybody that is conceivably capable of being seen as a less than wholehearted supporter of the regime. The seriousness of the present situation is clear not only from the CIPU Report, the newspaper reports and the background information, particularly from the UNHCR."
9. The evidence about the political situation in Zimbabwe in 2005
"threats by the United Kingdom to deport about 10,000 Zimbabweans which could be a cover to deploy elements trained in sabotage, intimidation and violence and destabilise the country before and during next March's Parliament elections."
10. Prof Ranger's evidence about the risk to involuntary deportees
11. The evidence of the Zimbabwe-based NGOs
12 AA: The AIT's conclusions
"And the truth of the matter is that whatever doubts one might have about the complainants individually, the body of evidence, from a score of separate people, all goes one way. Further, none of it seems to bear any mark of unreliability, and all of it accords with what one would generally expect of the CIO."
The AIT said that the appellant's claim succeeded if he showed a real risk. He did not need to prove a certainty. They continued:
"As we have attempted to explain above, the claim that every person returned involuntarily is at real risk of ill-treatment is not a claim that every one will in fact suffer ill-treatment. Likewise, looking at the past, the Appellant does not need to show that all those who have been returned involuntarily did suffer ill-treatment. He is entitled to rely, as he does, on evidence pointing to a substantial number of cases in the context of general evidence showing the source or reason for the risk."
13 The first argument on the appeal: The AIT misunderstood some of the evidence
14. The second argument on the appeal: the AIT misapplied a concession
"If failed Zimbabwean asylum-seekers do as such have a well-founded fear of persecution, this would be for a Convention reason, namely perceived or imputed political opinion." (Emphasis added)
15. The third argument on the appeal: AA is not a refugee
16. The third argument: a Preliminary Objection
"There are a number of recent decisions of this court which make it clear that as the IAT (prior to its abolition in April 2005) could only entertain an appeal on a point of law (see section 101(1) of the Nationality Immigration and Asylum Act 2002) it was necessary for a point of law to be discernible in the grounds of appeal when permission to appeal was given (see Miftari v SSHD  EWCA Civ 982 at  to …)…"
This passage was followed by a discussion of what appeared to be an exception to this discipline, arising where the IAT was confronted with the situation described by Lord Woolf MR in R v Home Secretary ex p Robinson  QB 928, 946C:
"If when the Tribunal reads the Special Adjudicator's decision there is an obvious point of Convention law favourable to the asylum-seeker which does not appear in the decision, it should grant leave to appeal."
The court in GH (Afghanistan) concluded (at para 16) that "[t]he obligation identified in Robinson can therefore best be explained as an aspect of the duty of the court to give anxious scrutiny to the claim of an asylum-seeker". Moreover (see para 17) no extension of Robinson could avail the Secretary of State in the case then before the court.
17. The third argument: substance
"… the term 'refugee' shall apply to any person who, owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of the country…"
Mr Burnett says that someone who can voluntarily return in safety is not outside the country of his nationality owing to a well-founded fear of persecution; he is outside it simply because he chooses not to return to it. The point requires little elaboration. It is critical to the definition of "refugee", and indeed to the scope of the international protection which the Convention requires to be afforded, that a well-founded fear of persecution should be the reason why the candidate refugee is outside the country of his nationality. So much is plain from the language of the definition. It is plain also from the very purpose of the Convention, which is to impose on States Parties a duty to protect persons within their borders who cannot return to their country of nationality for fear of being persecuted there. It is not to impose a duty of hospitality to persons who, if they chose, could return home with no risk whatever of being persecuted.
"[I]f a person is outside the country of his nationality because he has chosen to leave that country and seek asylum in a foreign country, rather than move to a place of relocation within his own country where he would have no well-founded fear of persecution, where the protection of his country would be available to him and where he could reasonably be expected to relocate, it can properly be said that he is not outside the country of his nationality owing to well-founded fear of being persecuted for a Convention reason."
See also para 19, which we need not cite.
"An appeal under section 82(1) against an immigration decision must be brought on one or more of the following grounds –
(g) that removal of the appellant from the United Kingdom in consequence of the immigration decision would breach the United Kingdom's obligations under the Refugee Convention or would be unlawful under section 6 of the Human Rights Act 1998 as being incompatible with the appellant's Convention rights."
Mr Nicol's argument is that "removal" must mean enforced removal; and therefore once it is shown that the appellant's enforced removal would lead to his being persecuted for a Convention reason (or ill-treated in breach of ECHR Article 3 standards), the statute gives him a good appeal against such removal whatever might be the position were he to return voluntarily.
"In my opinion the requirement [sc in the definition of 'refugee'] that an applicant's fear of persecution should be well-founded means that there has to be demonstrated a reasonable degree of likelihood that he will be persecuted for a Convention reason if returned to his own country."
If Mr Nicol deployed this reasoning, as he appeared to do, as support for the proposition that the position of an asylum-seeker on his voluntary return is irrelevant to the definition's application to him, that is a misuse of authority. Lord Keith was not considering the position of voluntary returnees and the passage cited implies nothing, certainly nothing in Mr Nicol's favour, as to what his view would have been if he were.
"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."
In the Court of Appeal in Sivakumaran Lord Donaldson MR had suggested that a person accepted as falling within the refugee definition would not necessarily attract the protection against refoulement afforded by Article 33. Lord Goff rejected that approach. He said (1001B-C):
"It is, I consider, plain… that the non-refoulement provision in article 33 was intended to apply to all persons determined to be refugees under article 1 of the Convention."
18. The third argument: the Danian case
"[W[e wonder whether Danian requires further examination. Ought the Refugee Convention to be confined to cases of what might be called 'real' need? Does it genuinely require the status of refugee to be given to a person like the Appellant whose claim arises solely from his voluntary and dishonest acts in the safety of the United Kingdom, or to others who, on the strength of this decision, may make an asylum claim purely in order to get the benefit of it? Or are such persons adequately protected by the European Convention on Human Rights, which has been incorporated fully into English law since Danian was decided? That Convention would protect them from the risk of harm that they have voluntarily or cynically chosen to incur, without giving them the benefits of refugee status."
We should say that Mr Nicol acknowledged, as is certainly the case, that the Refugee Convention confers further substantive rights in addition to the right of non-refoulement under Article 33. Mr Burnett's argument is that the correctness or otherwise of Danian did not arise for consideration in the AA appeal, and if (as appears to be the case) the AIT thought otherwise they were wrong to do so.
19. The third argument: safe voluntary return on the facts?
"The CIO are not primarily responsible for immigration services at Harare Airport. They do, however, have a presence there. The evidence we have seen makes it clear that when planes from the United Kingdom arrive at Harare members of the CIO are present in great numbers. Although there was some suggestion in the evidence before us that the Zimbabwean authorities treated arrivals from other white Anglophone countries… with similar suspicion, it is in our view clear that the CIO take a particular interest in arrivals from the United Kingdom. Nevertheless, it appears to be the case that ordinary travel to and from the United Kingdom, including voluntary departures by those who have had dealings with the immigration authorities of this country, are dealt with in the usual way by immigration officers (not the CIO) at the airport in Harare.
155. Involuntary departures are a different matter…" (our emphasis)
"50. We are aware that some Government of Zimbabwe agents… have lists of suspected MDC sympathisers in various areas around Zimbabwe. Returnees could be added to such lists, though we have no reports that they have been. We are in any case not aware that such lists are routinely used to intimidate/find people, except around the time of elections. Such lists are most likely used to control food distribution…
51. In the rural areas, it is customary for the local chiefs or village headmen (who are frequently linked to the regime) to monitor new arrivals of any kind. There have been allegations that the recent Government of Zimbabwe crackdown, Operation Murambatsvina, has led to incidents of intimidation of new arrivals in specific areas, but there are no reports of any incidents specific to returnees."
Professor Ranger made a statement in reply on 2nd August 2005, in which he refers (at para 5) to
"numerous instances of people fleeing their home area but being followed up and targeted in their area of refuge… I do not agree that in general the evidence suggests either that lists have been used only at election times or in the distribution of food. The compilation of lists and files is a major pre-occupation of the CIO and there is evidence of people being identified and followed up in post-election periods. In any case the distribution of food is now of critical significance."
20. A postscript to the third argument: ECHR Art 3
"However, this is without prejudice to the Secretary of State's ability to argue the point (ie as to whether Article 3 is intended to protect against forced removal a person who could safely return home voluntarily albeit that he could not be forcibly removed without a real risk of persecution) in a future case."
21. The appeal in LK
"8. There is, of course, now a shorter route to the conclusion that the Appellant is entitled to refugee status in the United Kingdom. As the Secretary of State recognised, the decision of the Tribunal in AA…, which is a country guidance case, might be regarded as leading to the conclusion that the Appellant should in any event be regarded as a refugee… In this appeal as, we understand, in others, the Secretary of State now argues that the country guidance case of AA should not be followed. This appeal therefore provides an opportunity for the Tribunal as presently constituted to give an authoritative view on the arguments being adduced by the Secretary of State.
11. … The Secretary of State points out that on 14 October… he announced that returns to Zimbabwe had been suspended. He now submits that the suspension of returns to Zimbabwe is an event which took place after the judgment in AA and thus casts doubt on its continued force. That, in our judgment, is simply wrong…
12. In any event, reliance on the Secretary of State's suspension of returns on 14 October hardly tells the whole story. As we understand the position, returns to Zimbabwe were suspended in the summer of this year as part of the arrangements made for the adjournment of a number of Judicial Review cases before Collins J and the selecting of AA as a test case to be heard by this Tribunal. The fact that returns had for the moment been suspended was part of the context in which the Tribunal heard the case of AA. None of the Secretary of State's arguments before the Tribunal in AA suggested that the suspension of returns made any difference to the status of the appellant in that case as he stood before the Tribunal.
13. There is, however, a much more general difficulty in the Secretary of State's argument that a person who would otherwise be entitled to the status of a refugee is not entitled to that status if removal is not threatened. If that were a good argument, there would never be any refugees because the Convention requires (broadly speaking) that refugees are not removed, and the United Kingdom Government's policy is certainly not to remove them (except where 'safe third country' arrangements of various sorts apply). A refugee's status as a refugee does not depend on the risk that he will be removed: it is a status that he has while he is in the country in which he has sought refuge. It is easy to lose sight of the fact, but almost the whole of the Refugee Convention is concerned precisely with the incidents of that status whilst he remains in the country which ex hypothesi is not the country of his nationality. Reinforcement of that view, if required, can be found throughout the decision of the Court of Appeal in Saad…  INLR 34…"
The AIT then proceeded to discuss the case of GH  EWCA Civ 1182, and concluded (at para 24) that that authority had
"no specific bearing on the question whether a particular individual is, as he stands before the Tribunal in the United Kingdom, entitled to status as a refugee. AA, on the other hand, is a case about refugee status. It decides that, because of the circumstances in Zimbabwe at the present time, a Zimbabwean citizen would not return there willingly has a well-founded fear of persecution for a Convention reason and is accordingly entitled to the status of refugee while he remains here. Although the reasoning depends, through the decisions of the Court of Appeal in Danian… and Mbanza on the projected removal, it is a decision about status, not about removeability…"
And so the AIT held that LK was a refugee on what might be called AA grounds, as well as by virtue of her homosexuality. This is the conclusion to which the Secretary of State takes objection on this appeal.
"… [W]e have reached the view, on the evidence before us, that the process by which the United Kingdom Government enforces the voluntary return of rejected asylum seekers to Zimbabwe exposes them to a risk of ill-treatment at the hands of the CIO."
"An appellant who has been refused recognition as a refugee but has been granted exceptional leave to remain may appeal under section 8 of the 1993 Act against the refusal to grant him refugee status."