England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
[AIT No. AA/05606/2009]

		Royal Courts of Justice Strand, London, WC2A 2LL
		2nd December 2010

Lord Justice Carnwath:

1. This is a slightly curious case, for reasons I will come to. The background is familiar enough and arises from the very difficult circumstances in Zimbabwe. The claimant is a citizen of Zimbabwe. She comes from a place in the countryside in Zimbabwe, where she lived before coming here. Her mother and her seven siblings are still living there.
2. She came to the UK in September 2002 and was given leave to enter on the basis she had come to visit a cousin. She then applied to remain as a domestic worker, which was refused. However, she remained here unlawfully. In May 2008 she claimed asylum on the basis of the risk of persecution in Zimbabwe, where she said she was known as an MDC supporter.
3. Her case was dismissed by the Secretary of State her appeal in front of Immigration Judge Frankish failed, but that resulted in a reconsideration before Immigration Judge McDade. He gave his decision on 19 January 2009. He dismissed the appeal. In paragraph 8 he referred to the guidance case of RN (Zimbabwe) and he said:

"This case holds that those at risk are no longer restricted to those perceived to be members or supporters of the MDC but include anyone who is unable to demonstrate support for or loyalty to the regime of Zanu-PF. Were I to hold that the core of the appellant's claim is credible I would have no difficulty in allowing this appeal as her assertion is that she was involved in attending the meetings and rallies for the MDC. She was a girlfriend of an active MDC member and as a result was targeted by Zanu-PF supporters by means of an assault when she was nine months pregnant, which resulted in the loss of the baby. However, for the reasons I shall set out below I do not find the appellant's account to be credible. I hold that she had little or no interest in politics and further that she did not suffer assault as a result of her alleged association with her boyfriend."

4. The decision then goes on to consider in more detail the evidence, and concludes at paragraph 9:

"The Appellant gives no evidence of any involvement or interest in the MDC since coming to the United Kingdom. It is clear that she herself has no political profile and I hold that her relationship with the boyfriend which ended some seven years ago would not give her one. In the circumstances I hold that she would be at no real risk of serious harm if returned to Zimbabwe and her claims for asylum, humanitarian protection and human rights, which are all interlinked, must fail."

5. That was followed by an application by an appeal to the Court of Appeal with permission granted by Stanley Burnton LJ, and led in due course to an order by consent remitting the matter to the tribunal. The order provided :

" The appellant's statutory appeal be remitted to the AIT for reconsideration in light of RN (Zimbabwe) on the basis of the factual findings made by Immigration Judge McDade."

6. The statement of reasons which had been submitted in support of the application for a consent order explained the background:

"The reconsideration hearing was held on 1 December 2008 before Immigration Judge McDade with the judge's determination promulgated on 19 January 2009. The Immigration Judge made adverse credibility findings and rejected her account of having such links with MDC as to put her at risk on return. The parties agreed that the Immigration Judge's determination promulgated on 19 January 2009 does not engage with the issues raised in the case of RN (Zimbabwe). The parties agree that it is necessary in order for a lawful decision to be reached in this matter for the AIT to consider the case in the light of RN on the basis of the factual finding made by Immigration Judge McDade."

7. The matter came back before the AIT, presided over by Senior Immigration Judge Jordan and Immigration Judge Parks. They referred to the background of the claim, noting the case that she had been a supporter of MDC. They referred to the reconsideration before Immigration Judge McDade and the appeal to the Court of Appeal. They commented on the slightly unusual position where, in effect, they had been asked to "reconsider a reconsideration". As they said, in normal circumstances the order of the Court of Appeal sweeps away the unlawful reconsideration, allowing a clear field to permit a lawful reconsideration to take place, thereby retaining intact the principle that there can be no more than one reconsideration on an appeal. They continued in paragraph 10:

"In the circumstances of this appeal, however, the parties agree that the findings of fact of Immigration Judge McDade were sustainable and could form the starting point. It certainly cannot be a reconsideration of the determination of Immigration Judge McDade because that itself is a reconsideration. We must therefore proceed on the basis that this is the resumed reconsideration of this appeal."

8. They then summarised the finding of Immigration Judge McDade, noting his finding that:

"…the appellant's account was not credible, that she had little or no interest in politics and that she did not suffer the assault as she had claimed."

In paragraph 16 they noted that the relationship with her boyfriend would not even now "present a political profile that would pose a risk to her".

9. The appellant was represented at that hearing by Mrs White. At paragraph 21 the tribunal record that they invited her to adduce any additional evidence upon which she wished to rely in support of the claim, the appellant herself being present, and they noted:

"Mrs White told us that she did not intend to call any additional evidence but sought to rely on the findings of fact made by the Immigration Judge and the document submitted to us which showed the MDC in the majority in the election held in Gutu East."

10. The tribunal then set out at some length -- arguably excessive -- the conclusions of the tribunal in RN (Zimbabwe) and came back to their own consideration of the matter at paragraph 26. They noted that although the appellant was found not to be credible in relation to the core of her account, it was necessary to consider whether, notwithstanding her failure to give a true account of her experience, there was a reasonable likelihood of persecution on return. They said:

"There are real difficulties in the way of [her] establishing that, notwithstanding advancing a claim of past persecution that has been substantially rejected, she is nevertheless able to show an inability to demonstrate loyalty for the regime in the circumstances that will put her at risk either at the airport or on return to her own area. The reason for this is, of course, the result of the appellant's own actions in advancing her claim.

We are left to speculate as to the appellant's political allegiances or those of her family members. 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.

Into this evidential lacuna, Mrs White sought to introduce findings of fact that the Immigration Judge did not make and a construction of the Immigration Judge's determination which we do not consider the determination can permit."

And they went on to discuss the points that had been made by her in that respect. At paragraph 31 they say:

"Furthermore, the appellant cannot properly cherry-pick those elements of the claim which have not been specifically rejected by the Immigration Judge and treat them as an independent claim untainted by the adverse credibility finding made upon other parts of the account."

At paragraph 33 they returned to the point that they were left to speculate as to the appellant's true political allegiances and those of her family members; and that she had not, for example, excluded the possibility that she was a Zanu-PF supporter whilst in Zimbabwe. Into this "evidential vacuum" there was no room to create a positive case that the appellant would find it difficult to demonstrate loyalty to the regime.

11. They went on to observe that she had made no freestanding claim to be at risk, freestanding in the sense that it arose independently of her account of past events. Her claim to be at risk was welded inextricably into her claims to have been at risk as a result of her own and her family's MDC activities in Zimbabwe. The collapse of that account "permits no credible alternative claim arising by default".
12. Then I need only refer to paragraph 40, where they draw the threads together:

"The appellant had been in the United Kingdom for a number of years. She will be returned as a failed asylum seeker. Both these factors must be taken into account as heightening risk. No credible evidence as provided why she should not be met on arrival by members of her family or that she should not return with them to where they live and enjoy whatever protection has rendered them free from harm since the appellant left Zimbabwe. It is not for the Tribunal to guess what protection her family enjoys but there has been no credible evidence that they have been harassed or persecuted by reason of a lack of such protection. We are not satisfied she has established an inability to demonstrate loyalty to the regime. The Immigration Judge did not refer to any material which he accepted that touches upon the point. We would not infer it from his findings of fact. The appellant had the opportunity to adduce evidence before us directly in support of this element but chose not to supplement her evidence on this or any other point.

We asked Mrs White whether there were any other factors the Tribunal was required to weigh up when assisting the risk faced by the appellant. We were referred to no others. We are not satisfied the appellant has established to the lower standard of proof that she is at risk of persecution."

13. Taken on its own that reasoning, as I think is accepted, would not be open to successful challenge. Indeed, observers of this area of the law would find in some of the wording an echo of the wording used in other cases to which this particular immigration judge was party, including one of those considered and upheld by this court in TM (Zimbabwe) [2010] EWCA Civ 916.
14. However, Mr McKenzie, who has appeared before us for the appellant, takes a specific point based on the Court of Appeal's order. He says that it was no business of the tribunal to be going into these broader matters, when the matter had been sent back to them on a very specific basis -- that is, on the basis of the facts as found by HHJ McDade. One of those facts was that the appellant had little or no interest in politics and that she had no political profile. In those circumstances, he says, it was not for them to speculate as to whether or not she was a supporter of Zanu If she had no political profile, then by implication that excluded her being a supporter of Zanu.
15. He says, furthermore, that if one relates that finding to the reasoning of this court in the more recent case of RT (Zimbabwe) [2010] EWCA Civ 1285, it is apparent that lack of political opinions can give rise to persecution where the circumstances are such that there is a risk of being persecuted for "imputed political opinion" (see paragraph 36 of our judgment). He says this case is similar to one of the cases there considered, RT itself, where it was found that the claimant had never been politically involved at home or abroad and that the tribunal had been wrong to treat this as insufficient in itself to show that she would have been at risk, without going on to consider whether she would be able to prove loyalty to the regime or be forced to lie in order to do so. That particular appeal was allowed on the basis that, since it had been found that she had no political profile and since she was going back to an area where there was a risk of her being stopped, there was a clear risk that she would be forced to lie if she was to make out a case of loyalty to Zanu-PF.
16. Mr Mackenzie supports his argument by referring to the correspondence which proceeded the consent order. There was in fact a draft prepared by the Treasury Solicitor which simply remitted the matter for reconsideration. The draft statement of reasons recorded that the respondent acknowledged that it was necessary for a lawful decision for the matter to be remitted for factual findings to be made. There was correspondence about that, in which those representing the appellant said that there was no need for more findings of fact. In a letter of 18 August 2009 they said:

"It is our position the findings were adequate for our client's appeal to be allowed on asylum grounds according to the terms of RN, ie our client would be returning to Zimbabwe as a failed asylum seeker, having spent a significant period in the UK and that she had no political profile which meant she would be unable to demonstrate allegiance to the Mugabe regime on return."

17. There was in fact a skeleton argument prepared by Mr Mackenzie for the purpose of that appeal which made the same point. At paragraph 12 it is said that the finding that she had no political profile:

"…amounts evidently to a finding that she would not be able to demonstrate loyalty to ZANU-PF. The lengthy time she had spent in the UK would contribute to that inability, following RN.

On the Immigration Judge's findings of fact, therefore, the appeal should be allowed."

18. The correspondence ended with an exchange where the appellant's solicitors said :

"Either that the factual findings stand and the AIT is simply to apply RN to the facts as found or for a new finding on the whole of the case to be made."

In response to that the Treasury Solicitors' representative said:

"My client agrees that the factual findings stand and the AIT is simply to apply RN to the facts as found (as you suggest in your skeleton argument)."

19. That led to the amendment of the statement of reasons and of the proposed draft order, in accordance with the proposals of the appellant's solicitor, to add the words "on the basis of the factual findings made by Immigration Judge McDade".
20. So Mr Mackenzie says not only is the order clear on its face, but that the basis on which this point had been put forward by them was made clear in the correspondence and the Treasury Solicitor agreed to it.
21. The difficulties I see with that simple proposition, attractive though it is, are twofold. In the first place I do not think one can simply take those two sentences out of the decision of Immigration Judge McDade and treat them as findings of fact free from the context in which they were made. The statement that "she had little or no interest in politics" were made in the context that she had put forward a case of being a supporter of the MDC, which was rejected. When the immigration judge said that she had no interest in politics, as I read it, he was simply rejecting that case, as indeed when he said that she has no political profile. I agree that one can argue about that particular interpretation and, if that issue had been raised before the tribunal, no doubt the tribunal would have dealt with it. That leads to the second and more fundamental difficulty, in my view, which is that before the tribunal the point taken by Mr Mackenzie in his skeleton argument to the Court of Appeal does not seem to have been taken in those stark terms by Mrs White. On the contrary, Mrs White clearly sought to add to the findings of Immigration Judge McDade, not only by introducing more recent evidence about the elections in Gutu East, but also by seeking to interpret the decision in relation to matters on which no specific finding had been made. That was what the AIT said she could not do, simply because the findings were not there. She was also given the opportunity to call additional evidence. There is no suggestion there that she rejected that opportunity on the basis that the order of the Court of Appeal simply did permit it, but rather that it was not something that she intended to do.
22. It is to be noted also that the tribunal had before them simply the order of the Court of Appeal and the statement of reasons in support. They had to interpret that as best they could with such assistance as Mrs White and the presenting officer were able to give. There is no suggestion that they had before them the pre-order correspondence or the skeleton of Mr Mackenzie as it was at that time.
23. In those circumstances it seems to me that they were entitled to read Immigration Judge McDade's decision in the way I have read it, to see it as dealing with the suggestion that she was a member of the MDC, but not excluding the possibility of her having allegiance to Zanu-PF, at least so far as necessary to support the decision that she had failed to establish that she would be unable to prove her loyalty to Zanu-PF.
24. Accordingly, in my view the particular point on which this appeal must stand or fall fails, and I would dismiss this appeal.

Lord Justice Jacob:

25. I agree. I have a reservation as to whether or not it is proper to interpret a court order, even a consent order, by reference to correspondence and the like which the court itself has never seen. But, whether that is so or not, I take the view that the findings of Immigration Judge McDade do not include, when read properly, a positive finding that this lady was a complete neutral in politics. What he was doing in paragraph 5, and effectively repeating again at paragraph 9, was saying no more than "I do not believe her". Once you have got to that point it is difficult to see how what he was saying could possibly then go on to include "but I do believe that she had no interest in politics". This was, in the context, saying "I do not believe her; in effect, I have no idea what her position is". True, he expressed it slightly differently, but that is the only rational way to read what he said.

Lord Justice Stanley Burnton:

26. I agree with both judgments.

Order: Appeal dismissed