England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ASYLUM AND IMMIGRATION TRIBUNAL
[AIT No. AS/03593/2005]

		Royal Courts of Justice Strand, London, WC2A 2LL
		30th April 2007

Lord Justice Sedley:

1. When I first had to consider the papers in this application for permission to appeal, I concluded, in March 2007, that there was no merit in the case-specific issues which were advanced, but I stood over the question the risk to the applicant on return to Zimbabwe to await this court's decision in what has become known as AA 2. Our decision in AA 2 was that the lead IAT case on return to Zimbabwe had not dealt adequately with the evidence about what happened at the airport to returnees and must go back to the AIT. There the hearing, I believe, still remains pending.
2. Mr Henderson, however, now renews his application in relation to the case-specific grounds in this matter. His skeleton argument, though extremely late, is well and persuasively argued. It has to be said at the outset that his client's immigration history and her recent activity sur place make her a pretty unattractive candidate, but that is not what determines whether people are entitled to asylum or not. For reasons I will give briefly, I think he has an arguable case that she has not had the benefit of entirely lawful decisions.
3. The first ground is that the extant decision of Immigration Judge Boyd QC, against which permission to appeal is formally sought, ought never to have come about because there was no good ground for oversetting the initial decision of Immigration Judge Blackford in the applicant's favour. The applicant is a teacher and claims to be an MDC supporter. She gave an entirely recognisable account of harassment by Zanu-PF supporters and functionaries. Immigration Judge Blackford found her an unimpressive witness on matters of fact, but accepted that she was a teacher and that she had encountered the kind of trouble she described arising out of the 2000 elections. He did not believe her to be an MDC member and considered, in any event, that she could go and live with or near her mother, who seemed to be safe. But he allowed her appeals on asylum and human rights grounds, on the footing that as a teacher she was in a class who, if they were not Zanu supporters, faced a risk of persecution for imputed political opinion wherever they were located. Senior Immigration Judge Latter ordered reconsideration because he considered it arguable "that the fact alone of being a teacher is an insufficient evidential basis for a finding that a political opinion would be imputed to her".
4. The first stage reconsideration which followed concluded:

"6. It is clear that the background material deals with the plight of practising teachers and that much of it relates to the time of elections when things can often be more difficult than normal. Some of the teachers referred to in paragraph 44 may well have been willing participants if they had been supporters of ZANU-PF. While we accept that the treatment of practising teachers, as set out in paragraph 44, may have been discriminatory, and arguably persecutory, for those who are not ZANU-PF supporters, it does not support the suggestion that all teachers are at risk in Zimbabwe. We cannot find that the background evidence referred to by the Immigration Judge provides anything like adequate reasons for finding that no teacher can be returned to Zimbabwe. The finding was an error of law and the reconsideration must proceed to a second stage reconsideration."

5. I have to say that, on reading and rereading the papers placed before me, I had no doubt that this was a proper decision and that any attempt to overset it in this court would fail. In the light of what Mr Henderson has now placed before me, I am not now so sure. Nobody reading the first determination, that of Immigration Judge Blackford, would know or suspect that among the objective material before him was a report of respected expert, Professor Terence Ranger, which undoubtedly gives substance to the finding he made in the applicant's favour. Nor would they know that there was, by the time of the promulgation of Mr Blackford's decision, though not at the time the matter was argued before him, the decision of the IAT in SM (MDC - internal flight - risk categories) Zimbabwe CG [2005] UKIAT 00100. This decision, too, is at least capable of giving support to Mr Blackford's conclusion. It arguably should have been part of the material he took into account and, for all one knows, may have been. The bundle presented in support of the application for permission to appeal, however, contained neither of these things. They have only been drawn to my attention in recent hours.
6. If either of them falls to be treated as part of the material from which the adjudicator derives his conclusion about the risk facing non-Zanu PF teachers, then there may be force in Mr Henderson's argument that there was, in reality, no error of law in the adjudicator's decision. This court has been prepared, in a good many cases, to treat background material not specifically referred to as part of, or at least as explanatory of, a determination. It can, of course, make no difference whether the determination in question was favourable or unfavourable to the applicant. I am therefore persuaded that the material and arguments set out in paragraphs 34 to 46 of Mr Henderson's skeleton argument are viable and, if successful, determinative without more of the appeal.
7. His second ground is that the fresh decision, that of Immigration Judge Boyd QC, accepting that it was properly brought into being and is adverse to the applicant, is itself legally flawed. The two principal flaws are said to be a) that he gave inadequate consideration to the risk the applicant faced as a teacher and, as Mr Boyd found, low level MDC activist; and b) that he had wrongly held that treatment would be available to her daughter who, like the applicant herself, is HIV positive but does not currently require treatment. The immigration judge took account of the applicant's immigration history. She had entered in 2000 as a visitor and remained as a student with limited permission to work. She had continued to work after the permission expired but applied for asylum only after the birth in September 2004 of her daughter. The immigration judge found that her asylum application had been made not for protection but in order to remain in the United Kingdom and be able to draw benefits.
8. Nevertheless, he went on to consider whether, objectively, she did have a well-founded fear of persecution as an MDC member. He went in detail through much of the evidence and concluded, on page 43:

"64. My findings on this part of her appeal are as follows. I find that to the extent that she was involved with the MDC it was at a low level. It is possible that her claim to have been involved is entirely fabricated. There is in particular no evidence to corroborate her claim to have been a presiding officer in the June 2000 election as a result of which, she has claimed, she was threatened by Zanu-PF. Such evidence would not have been difficult to come by. She came to the UK not to escape persecution, but for other reasons. These may have included a wish for a better life. She was of no particular interest to the authorities or to Zanu-PF up to the time of her departure by reason of her being, as she has claimed, an MDC activist or as an MDC activist who is also a teacher. She would on her return be of no interest to the authorities or Zanu-PF by reason of any suspected association with the MDC or as a teacher."

9. Next the immigration judge considered the applicant's and her daughter's medical condition. Having run through the evidence, he concluded that while there might have been instances of denial of free HIV treatment to non-members of Zanu PF, "the general situation appears to be that there is little or no denial of treatment on political grounds", so that it was not likely that the applicant would "in this respect suffer persecution contrary to Article 3". It is only at the very end of his determination that the immigration judge relates his findings to the European Convention on Human Rights, but no separate point was taken on this. Whether it is regarded as an appraisal of risk of treatment violating the ECHR or of a fear of persecution on political grounds, the claim in Mr Boyd's judgment failed on the facts. It failed also in relation to the young daughter.
10. It is a striking fact that this second determination deals neither with the case of SM -- even though it records that SM had been advanced by way of submission and even though the first stage tribunal had specifically drawn attention to it -- nor with Professor Ranger's report. It may, in the end, be found that neither of the two determinations focuses properly on these important elements in the data. But it does seem to me troubling, although I am not certain I would have given permission on this ground alone, that the second-stage determination seems to have replicated what may have been a blind spot in the first determination. If it was not a blind spot in the first determination, but was implicitly taken into account, then the first determination may have been immune to challenge. I am therefore prepared to give permission to appeal on both the issues now canvassed by Mr Henderson.
11. There is no reason why these should await the outcome in what is now AA 3. It is quite possible that this outcome will be known by the time the appeal is heard. If not and if the appeal on the further grounds fails, the remaining issue will continue to abide the decision in AA 3, on risk on return. If, however, the appeal succeeds on the grounds on which I have given permission to appeal, that will probably render the question of risk on return otiose. For the rest, my direction in relation to AA 3 stands. When the outcome is known, it will be possible to decide whether it has a bearing on how this case should be disposed of, and I would expect the parties to collaborate in bringing it back before the court if appropriate.


Order: Application granted.