ON APPEAL FROM THE ASYLUM AND IMMIGRATION TRIBUNAL
AA/09252/2008, AA/04224/2008 & AA/06966/2008
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE RIX
LORD JUSTICE ELIAS
| TM (ZIMBABWE)
|- and -
|SECRETARY OF STATE FOR THE HOME DEPARTMENT
Mr Steven Kovats QC (instructed by Treasury Solicitors) for the Respondent
Hearing date: 15 July 2010
Crown Copyright ©
Lord Justice Elias :
The relevant law.
"…[The specialist tribunals] and they alone are the judges of the facts. It is not enough that their decision on those facts may seem harsh to people who have not heard and read the evidence and arguments which they have heard and read. Their decisions should be respected unless it is quite clear that they have misdirected themselves in law. Appellate courts should not rush to find such misdirections simply because they might have reached a different conclusion on the facts or expressed themselves differently."
"12.2. A reported determination of the Tribunal, the AIT or the IAT bearing the letters "CG" shall be treated as an authoritative finding on the country guidance issue identified in the determination, based upon the evidence before the members of the Tribunal, the AIT or the IAT that determine the appeal. As a result, unless it has been expressly superseded or replaced by any later "CG" determination, or is inconsistent with other authority that is binding on the Tribunal, such a country guidance case is authoritative in any subsequent appeal, so far as that appeal:-
(a) relates to the country guidance issue in question; and
(b) depends upon the same or similar evidence.
12.4. Because of the principle that like cases should be treated in like manner, any failure to follow a clear, apparently applicable country guidance case or to show why it does not apply to the case in question is likely to be regarded as grounds for appeal on a point of law."
The guidance in RN.
"..a vicious campaign of violence, murder, destruction, rape and displacement designed to ensure that there remains of the MDC nothing capable of mounting a challenge to the continued authority of the ruling party."
"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.
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, subject to what we have said at paragraph 242 to 246 above, 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 attempt by the regime to identify and suppress its opponents has moved from the individual to the collective. Thus, a person who returns to a home in an area where the MDC made inroads into the Zanu-PF vote at this year's elections faces an enhanced risk as whole communities are being punished for the outcome in an attempt to change the political landscape for the future and to eliminate the MDC support base.
There is clear evidence also that teachers in Zimbabwe have, once again, become targets for persecution in Zimbabwe. This is confirmed by the evidence of Professor Ranger considered at paragraph 96 of this determination and reinforced by the news reports, examples of which are given at paragraphs 130 and 148. As many teachers have fled to avoid retribution, the fact of being a teacher or having been a teacher in the past again is capable of raising an enhanced risk, whether or not a person was a polling officer, because when encountered it will not be known what a particular teacher did or did not do in another area.
It is the CIO, and not the undisciplined militias, that remain responsible for monitoring returns to Harare airport. In respect of those returning to the airport there is no evidence that the state authorities have abandoned any attempt to distinguish between those actively involved in support of the MDC or otherwise of adverse interest and those who simply have not demonstrated positive support for or loyalty to Zanu-PF. There is no reason to depart from the assessment made in HS of those who would be identified at the airport of being of sufficient interest to merit further interrogation and so to be at real risk of harm such as to infringe either Convention."
"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."
"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."
The significance of an adverse credibility finding.
"Third, the observation in Ariaya and Sammy and in MA that a person who has not given a credible account of his own history cannot easily show that he would be at risk as a draft evader or because of illegal exit is, with respect, a robust assessment of practical likelihood, but it is not expressed as, and cannot be, any sort of rule of law or even rule of thumb. In every case it is still necessary to consider, despite the failure of the applicant to help himself by giving a true or any account of his own experiences, whether there is a reasonable likelihood of persecution on return"
"I accept that there may be cases where the appellant's testimony is disbelieved but other evidence proves his/her asylum claim; and Buxton LJ has cited authority (paragraph 29) to show that the court's duty is to vindicate a good asylum claim even though the appellant may have lied or otherwise acted in bad faith: see Mbanga  Imm AR 136, 142 and Danian v SSHD  Imm AR 96. But here, the consequence of MY having been disbelieved is that there is no material on which the immigration judge or this court can make any finding as to how MY left Eritrea."
Sur place activity.
"A person may have a well-founded fear of being persecuted or a real risk of suffering serious harm based on events which have taken place since the person left the country of origin or country of return and/or activities which have been engaged in by a person since he left the country of origin or country of return, in particular where it is established that the activities relied upon constitute the expression and continuation of convictions or orientations held in the country of origin or country of return."
"UNHCR is of the view that an asylum-seeker who can establish that he/she has a well-founded fear of persecution on Convention grounds should fall under the scope of the inclusion clauses, irrespective of whether the actions giving risk to such fear have been carried out in good or in bad faith. Accordingly, even if the applicant has created a claim to refugee status by resorting to opportunistic post-flight activities, it would not be right to deprive him of international protections and return him/her to his/her country of origin if it is established that the consequences of such return may result in persecution for one of the reasons enumerated in the 1951 Convention.
We realise that this may encourage the misuse of the asylum system by persons who, without having real protection needs, want to create a refugee claim for themselves through irresponsible/opportunistic actions. This consideration is, no doubt, an important one, as the misuse of the asylum system may eventually be detrimental to the interests of bona fide asylum-seekers and genuine refugees. For this reason, UNHCR would not object to a more stringent evaluation of the well-foundedness of a person's fear of persecution in cases involving opportunistic claims.
In this connection, it should be borne in mind that opportunistic post-flight activities will not necessarily create a real risk of persecution in the claimant's home country, either because they will not come to the attention of the authorities of that country or because the opportunistic nature of such activities will be apparent to all, including to those authorities."
"As has been seen, the tribunal, while accepting that the appellant's political activity in this country was genuine, were not prepared to accept in the absence of positive evidence that the Eritrean authorities had 'the means and the inclination' to monitor such activities as a demonstration outside their embassy, or that they would be able to identify the appellant from photographs of the demonstration. In my judgment, and without disrespect to what is a specialist tribunal, this is a finding which risks losing contact with reality. Where, as here, the tribunal has objective evidence which 'paints a bleak picture of the suppression of political opponents' by a named government, it requires little or no evidence or speculation to arrive at a strong possibility – and perhaps more – that its foreign legations not only film or photograph their nationals who demonstrate in public against the regime but have informers among expatriate oppositionist organisations who can name the people who are filmed or photographed. Similarly it does not require affirmative evidence to establish a probability that the intelligence services of such states monitor the internet for information about oppositionist groups. The real question in most cases will be what follows for the individual claimant. If, for example, any information reaching the embassy is likely to be that the claimant identified in a photograph is a hanger-on with no real commitment to the oppositionist cause, that will go directly to the issue flagged."
"The guidance in HS requires the Tribunal to take into account that there is active scrutiny by the CIO of MDC activities in the UK. But it goes too far to say that that creates a presumption that the system of monitoring is somehow foolproof. In most cases (and this, I think, is one of them) the issue of disclosure will be a matter of inference and degree. There will rarely, if ever, be case-specific evidence as to whether the appellant's activities are known to the CIO and it will therefore normally be unrealistic to attempt to divorce the issue of whether those activities have become known to the regime from the question of whether they would be of any real concern to it. The more significant the political activity, the more likely that it will become apparent and therefore be of interest to those monitoring it.
This assessment is one for the Tribunal to carry out, having regard to all the relevant material. An appeal against its decision lies to this court only if it discloses an error of law. The Court of Appeal cannot and will not interfere with the decision arrived at unless it can be shown either that the Tribunal failed to take relevant material into account; or that conversely it took account of material that was immaterial to the inquiry it was embarked upon; or that its decision was perverse or irrational in the Wednesbury sense. If no challenge can be mounted on those grounds then the decision will stand unless the Tribunal has failed to give proper reasons for it."
Risk of persecution for volunteering political views.
"If the applicant would in fact live openly and thereby be exposed to a real risk of persecution, then he has a well-founded fear of persecution - even if he could avoid the risk by living "discreetly".
If, on the other hand, the tribunal concludes that the applicant would in fact live discreetly and so avoid persecution, it must go on to ask itself why he would do so.
If the tribunal concludes that the applicant would choose to live discreetly simply because that was how he himself would wish to live, or because of social pressures, eg, not wanting to distress his parents or embarrass his friends, then his application should be rejected. Social pressures of that kind do not amount to persecution and the Convention does not offer protection against them. Such a person has no well-founded fear of persecution because, for reasons that have nothing to do with any fear of persecution, he himself chooses to adopt a way of life which means that he is not in fact liable to be persecuted because he is gay.
If, on the other hand, the tribunal concludes that a material reason for the applicant living discreetly on his return would be a fear of the persecution which would follow if he were to live openly as a gay man, then, other things being equal, his application should be accepted. Such a person has a well-founded fear of persecution. To reject his application on the ground that he could avoid the persecution by living discreetly would be to defeat the very right which the Convention exists to protect – his right to live freely and openly as a gay man without fear of persecution. By admitting him to asylum and allowing him to live freely and openly as a gay man without fear of persecution, the receiving state gives effect to that right by affording the applicant a surrogate for the protection from persecution which his country of nationality should have afforded him."
"…the distinction is pretty unrealistic. Unless he were minded to swell the ranks of gay martyrs, when faced with a real threat of persecution, the applicant would have no real choice: he would be compelled to act discreetly. Therefore the question is whether an applicant is to be regarded as a refugee for purposes of the Convention in circumstances where the reality is that, if he were returned to his country of nationality, he would have to act discreetly in order to avoid persecution."
"History has long shown that persons holding religious beliefs or political opinions, being members of particular social groups or having particular racial or national origins are especially vulnerable to persecution from their national authorities. The object of the signatories to the Convention was to protect the holding of such beliefs, opinions, membership and origins by giving the persons concerned refuge in the signatory countries when their country of nationality would not protect them. It would undermine the object of the Convention if the signatory countries required them to modify their beliefs or opinions or to hide their race, nationality or membership of particular social groups before those countries would give them protection under the Convention."
The individual cases.
"A major factor which assists me to decide that the appellant has neither been politically active in Zimbabwe or politically involved to any significant degree in the United Kingdom is the fact that she returned to Zimbabwe without any apparent difficulty in 2003, 2005 and 2007 spending some weeks there. Although the appellant claims that she thought it was dangerous to return and took precautions by travelling at night, staying in hotels and not going to her home that does not, in my view, negative the conclusions I can draw from such visits. That is because the appellant travelled through Harare on each occasion at a time when, if her claims are to be believed, she was a person who had been arrested by the authorities for opposition activity, had been involved in such activity in the United Kingdom and photographs of her circulated. HS (Returning asylum seekers) Zimbabwe CG  UKAIT 00094, which was the country guidance available at the time of the respondent's return, makes it clear that there is a process of screening returning passengers particularly those whom the CIO will have identified as of interest. The appellant's claimed political activity would, I find, be likely to draw the attention of the authorities on each return and I do not conclude that the student visa stamp in the appellant's passport would stop the appellant being identified as of interest during the screening process. I conclude that the appellant's return to Zimbabwe is a clear indication that she had not been involved in any political activity either in Zimbabwe or in the United Kingdom which might have drawn the attention of the Zimbabwean authorities."
53. In summary, I am unable to conclude that the appellant was a refugee when she came to the United Kingdom and find that she has only been involved in low level MDC activity in the United Kingdom which would not, to observers, show her to be conscientiously involved against the Zibmabwean regime. Against this background I have considered whether the appellant will be at risk on return to Zimbabwe on account of her status as a former teacher there, and because of her limited opposition activity in the United Kingdom. To reach my conclusions in this respect I take into consideration the guidance set out in RN and such guidance as remains in HS.
54. RN specifies that teachers in Zimbabwe have become, again, targets of persecution and that there is also risk for anyone who is unable to demonstrate support for or loyalty to the regime or Zanu-PF. As far as the appellant's status as a teacher is concerned, I am not satisfied that such status will create a risk for her. The appellant's return visits to Zimbabwe show that, up to 2007, she was certainly not viewed by the authorities with any suspicion. Further, RN does not find that all returning teachers are at risk; it maybe puts them in a risk category subject to the circumstances of each individual case. As I am not satisfied the appellant was not targeted as a teacher in the past and because of her safe return to Zimbabwe, I do not conclude that she would be at risk if returned now.
55. As to the second issue involving demonstration of support for or loyalty to the Zanu-PF regime, my finding that the appellant has not been involved in political activity in Zimbabwe or, to any significant degree, in the United Kingdom is relevant. She will, I conclude, be seen as a former teacher who had not been involved in opposition activity. I also find that the appellant's sur place activities in the United Kingdom are not those of the conscientious opposition human rights activist she claims to be but are activities in which she became involved simply to enhance her late asylum claim. Although I take into consideration the decisions of the Court of Appeal in relation to sur place claims, notably that in YB (Eritrea)  EWCA Civ 360, I conclude that the appellant's activities, even if they had been noted by the Zimbabwean authorities, would be seen as nothing more than an attempt to enhance an asylum claim by someone who had no record of opposition activity prior to leaving Zimbabwe."
"58. There are limited matters that I can accept in relation to the appellant. I accept that she is a nursing aide and worked for a nursing agency between 1996 and 2001. I accept that she may well have worked for white farmers. I accept that persons working for white families may not have been popular with Zanu-PF followers. I accept that at or about the time that she left many hundreds if not thousands of Zimbabweans were reassessing their position and were leaving the country. I accept that the conditions in that country were far from perfect and that it would be desirable for persons of whatever persuasion unless they were part of a favoured elite to seek lives elsewhere.
62. I must therefore consider her as someone who has certain nursing qualifications who fled the country in 2001 and has no profile of any political nature at all in Zimbabwe. She has given different accounts as to whether she is an actual member of the MDC in the UK and in any event has demonstrated a lack of knowledge of MDC personalities in her interview. The most that she is able to say is that she has attended the Zimbabwe Vigil on Saturday nights.
He went on to find that hundreds if not thousands of persons would have attended the vigils, and he did not consider that she would come to the notice of the authorities in Zimbabwe on that account.
"26. It is likely that there is a sizeable Zimbabwean community in the United Kingdom. It is simply inconceivable that the Zimbabwean High Commission has the resources to monitor every one of them. Any rational surveillance organisation must have to distinguish between those who are of significant interest to the authorities and those who are not. Were the CIO able to gather the names of all those involved, past and present, this would create its own difficulties. The proliferation of hundreds or perhaps thousands of names might well lead to a workload under which even the most sophisticated information-gathering network would buckle.
27. We are satisfied that the CIO maintains an active interest in opposition activities in the United Kingdom and that this may include infiltration into United Kingdom groups. Notwithstanding this material, there are both logistical and financial hurdles in maintaining a surveillance gathering network which covers every meeting however long ago and maintains records of those present and is able to identify those present either by name or by identified photographic records. There is no mechanism identified in the evidence which demonstrates any real likelihood of the information coming to the attention of the authorities were the appellant to return to Zimbabwe. There are formidable obstacles in identifying an individual from a photograph or mere attendance at a meeting or rally. Even if the authorities are able to obtain a list of names, the task of distinguishing between activists and mere attendees and then transferring that information back to the authorities in Zimbabwe and then to use it to identify returnees raises almost overwhelming practical difficulties. The grounds of application fail to identify the practical mechanism that might result in harm."
"41. It is for the appellant to establish her claim, albeit to the lower standard of proof. The Immigration Judge did not find her credible in relation to the core of her account of past persecution but, in accordance with what Buxton LJ said in GM & YT (Eritrea) v SSHD, it remains necessary for us to consider whether, notwithstanding her failure to give a true account of her experiences, that there is a reasonable likelihood of persecution on return. In our judgment, there are formidable difficulties in the way of this appellant establishing that, notwithstanding her advancing a claim of past persecution that has been substantially rejected, she is nevertheless able to show an inability to demonstrate loyalty to the regime in circumstances that will put her at risk either at the airport or on return to her home area. The reason for this is, of course, the result of the appellant's own actions in advancing this claim.
42. 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."
"46. Ms Birring submitted that, notwithstanding the Immigration Judge's credibility findings, the fact that the appellant has been absent from Zimbabwe for a number of years, has attended vigils before the embassy and cannot show that she voted for Zanu-PF in the elections of 2008 because she was in the United Kingdom has demonstrated to the lower standard of proof that she falls within the category of persons identified in paragraph 79 of RN as being someone who does not sympathise with the regime. Whilst we accept the period the appellant has spent away from Zimbabwe and the fact that she was absent during the 2008 elections are factors that we must, and do, take into account in the overall risk assessment, we are not satisfied that those elements of the claim which the appellant is able to establish are sufficient given the evidential lacuna in the appellant's case which we have already identified.
47. Ms Birring argued that the appellant should be believed in her claim to have been a supporter of the MDC because her presence at vigils does not fit with the profile of a Zanu-PF supporter or one who has an ability to demonstrate loyalty to the regime. We do not agree that the overt support that the appellant now provides for the MDC can only reasonably be attributed to opposition to the regime. The presence of individuals at rallies is, regrettably, equivocal; being as easily referable to a wish to enhance an asylum claim as to political activism. In the appellant's case there is no evidence of political activism in Zimbabwe and the appellant's late application for asylum in 2008 coincides with the Immigration Judge's findings of attendants [sic] at vigils beginning in 2007. There remains a long period from a long arrival [sic] in 2001 and her involvement with the MDC in the United Kingdom."
"there are arguable grounds for concluding that the IJ has failed lawfully to consider the evidence of support of the MDC in Zimbabwe and your claim should be re-examined in the light of the re-assessment of risk in the recent country guidance case of RN (Returnees) Zimbabwe CG… "
Lord Justice Rix:
Lord Justice Ward: