COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ASYLUM AND IMMIGRATION TRIBUNAL
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE JACOB
LORD JUSTICE WILSON
| RK (ZIMBABWE)
|- and -
|THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Miss Eleanor Grey QC (instructed by The Treasury Solicitor) for the The Secretary of State
Hearing date: 3 March 2011
Crown Copyright ©
Lord Justice Laws:
"There has been a significant change in country conditions in Zimbabwe since the date of the IJ's determination. If unsuccessful in this appeal the appellant faces the prospect of return to Zimbabwe as a failed asylum seeker who has been living for some years in the United Kingdom. That may be sufficient to place her within a risk category identified in RN. But that establishes only that the appellant would fall within a group of persons who may be at risk on return and not that she will be at risk. RN is to be read and applied as a whole."
The IJ considered (paragraph 31) that there were "formidable difficulties" in the way of the appellant's demonstrating an inability to show loyalty to the Zanu-PF regime. As regards the sur place claim, the IJ did not accept that the appellant's ROHR membership was genuine or that she was a genuine member or supporter of ROHR (paragraph 33-34), nor that (paragraph 34) her political activities in this country "were a genuine expression of her political views". He concluded (paragraph 35) that the appellant had failed to discharge the burden of showing that she would be at risk on return.
"[E]ven if the appellant's entire sur place activities were correctly rejected by the Immigration Judge, it still left the case in which (i) the appellant has been outside of Zimbabwe for some 8 years, (ii) she has not voted in the recent elections in Zimbabwe and thereby cannot show loyalty to the regime there, (iii) she will be returned as an involuntary returnee from Britain which is seen by the regime in Zimbabwe as hostile…"
Referring to this passage Sir Richard opined that the appellant fell within the risk category identified in paragraphs 231 – 234 of RN as a person at risk from militias or gangs. I should read paragraphs 230 – 234:
"230. It remains the position, in our judgment, 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.
231. But, apart from in those circumstances, having made an unsuccessful asylum claim in the United Kingdom will make it very difficult for the returnee to demonstrate the loyalty to the regime and the ruling party necessary to avoid the risk of serious harm at the hands of the war veterans or militias that are likely to be encountered either on the way to the home area or after having returned there. This is because, even if such a person is not returning to one of the areas where risk arises simply from being resident there, he will be unable to demonstrate that he voted for Zanu-PF and so he may be assumed to be a supporter of the opposition, that being sufficient to give rise to a real risk of being subjected to ill-treatment such as to infringe Article 3.
232. And, regardless of the political opinion or associations of the individual, or the absence of any at all, the persecution involved in the infliction of such ill-treatment will be for a reason recognised by the Convention. This is because it is inflicted on the basis of imputed political opinion.
233. In our view the level of risk is not reduced by the failed asylum seeker returning not to his home area but to another area instead where he is unknown. As a newcomer to the area, he would be very likely to encounter enquiries from those representatives of the regime in control of the area as to his background, history and associations. In such an area the same risk arises of being faced with a demand to demonstrate loyalty to the ruling party and it may be that the level of risk is perhaps enhanced because, as a newcomer, he would attract interest as to his background and suspicion of having been displaced already on account of being found to be disloyal or a potential supporter of the opposition to the regime.
234. For these reasons, a person not able to demonstrate loyalty to Zanu-PF or with the regime in some form or other will be at real risk having returned to Zimbabwe from the United Kingdom having made an unsuccessful asylum claim. That will be regardless of the mechanics of his return. Those with whom he would have to deal in his home area or other place of relocation would be concerned, once he had failed to demonstrate any links with Zanu-PF, not with the method by which he had been returned from the United Kingdom but simply with the fact that his having made an asylum claim here demonstrated him to be a disloyal person who had not supported the party in the elections and as a potential supporter of the MDC."
"… If the tribunal find that, in spite of, or perhaps because of, his own political indifference, the claimant would find no difficulty in professing loyalty to the regime and that this would in practice protect him, then (subject to HJ (Iran)) there seems no reason in principle why they should not give effect to that conclusion.
31 So the real question is whether the HJ (Iran) protection extends to a person who has no firm political views, but might, if stopped by the militia, be willing to express something more positive than political indifference if that were necessary in order to avoid maltreatment."
The court's conclusion is to be found in paragraph 36-37:
"…. The core of the protected right is the right not to be persecuted for holding political views which they do not have. There is nothing 'marginal' about the risk of being stopped by militia and persecuted because of that. If they are forced to lie about their absence of political beliefs, solely in order to avoid persecution, that seems to us to be covered by the HJ (Iran) principle, and does not defeat their claims to asylum.
37. Accordingly we accept the thrust of Mr Norton-Taylor's second submission, if not the precise wording. It is not a question of what the claimant is 'required' to do. However, if the tribunal finds that he or she would be willing to lie about political beliefs, or about the absence of political beliefs, but that the reason for lying is to avoid persecution, that does not defeat the claim. "
"The Respondent agrees that the AIT, on reconsideration before Immigration Judge Sommerville, did not adequately assess the country guidance in RN and the application of that guidance to the Appellant's case, in particular with reference to paragraphs 225 and 234 of RN. In particular, the AIT did not give sufficient consideration and/or provide sufficient reasoning with respect to the following factors:
(i) The extent to which the Appellant may be able to demonstrate loyalty to Zanu PF and the effect of that on the Appellant's risk profile; and
(ii) the extent to which the Appellant might face a real risk on return to Zimbabwe by virtue of her having been present in the United Kingdom for a number of years and by virtue of her status as a failed asylum seeker returning from the United Kingdom."
Mr Mahmood for the appellant submits, by contrast, that the appeal should be allowed outright.
"This appellant appears before me as someone who has had no political profile in Zimbabwe nor have her family any political profile and they were not mistreated for that reason. She suffered no persecution in Zimbabwe."
"… an applicant found not to have been a witness of truth will not be assumed to be truthful about his inability to demonstrate loyalty."
Lord Justice Jacob:
Lord Justice Wilson: