England and Wales Court of Appeal (Civil Division) Decisions

IN THE HIGH COURT OF JUSTICE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ASYLUM AND IMMIGRATION TRIBUNAL
IJ Sommerville

		Royal Courts of Justice Strand, London, WC2A 2LL
		20/04/2011

Lord Justice Laws:

1. This is an appeal, with permission granted by Sir Richard Buxton on limited grounds on 13 May 2010, against the determination of Immigration Judge Sommerville made at a second stage reconsideration and sent out on 11 January 2010. By that decision the IJ dismissed the appellant's appeal against the Secretary of State's refusal of asylum on 19 March 2009 and held that she was not eligible for humanitarian protection.
2. The appellant is a national of Zimbabwe aged 28. She claims to have entered the United Kingdom on 20 August 2002 and to have been granted leave to enter for six months. She applied for but on 6 January 2003 was refused a student visa. A further application was refused on 4 April 2003; however after a yet further application the appellant was granted leave to remain. That leave was renewed from time to time, finally expiring on 31 October 2008. The appellant applied on 22 November 2008 for leave to remain as what is called a Tier 1 migrant, but that was refused on 22 December 2008. Thereafter on 21 January 2009 she claimed asylum. That was as I have said refused on 19 March 2009. The appellant appealed against that decision. The appeal came before IJ Meah, who on 6 May 2009 allowed it on asylum grounds but dismissed the human rights grounds. On the Secretary of State's application a second stage reconsideration was ordered by IJ Southern on 14 October 2009. The IJ held that IJ Meah had erroneously held, in effect, that the appellant had established a well founded fear of persecution solely by virtue of the fact that she faced being returned to Zimbabwe as a failed asylum-seeker after a period of years' residence in the United Kingdom. SIJ Southern however went on to observe that IJ Meah had not considered the appellant's claim to be a refugee sur place, and that the matter would have to proceed to a further hearing on the merits at which paragraphs 11-13 of IJ Meah's findings would constitute the factual starting point. In those paragraphs IJ Meah had made comprehensive findings to the effect that the appellant's account was incredible, especially as regards the assertion that her brothers were affiliated to the MDC and that she was transferring money to Zimbabwe for the support of the MDC.
3. And so, as I have said, the matter came before IJ Sommerville for a second stage reconsideration. That was on 17 December 2009. The appellant's representative sought an adjournment. The IJ refused that application for reasons he gave at paragraph 11. This was complained of in the notice of appeal to this court, but Sir Richard Buxton declined to grant permission on that ground.
4. IJ Sommerville proceeded to discuss the facts of the case, and referred to the appellant's assertion that in October 2008 she had joined an organisation called the Restoration of Human Rights (ROHR) which was opposed to the Mugabe regime (see paragraph 26 of IJ Sommerville's determination).
5. The IJ referred to the leading country guidance case of RN (Zimbabwe) [2008] UKAIT 00083, and said this in paragraph 30:

"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.

6. In a passage in the appellant's first skeleton argument to which Sir Richard Buxton attached importance, counsel says this (paragraph 6):

"[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."

7. I should also refer to the recent decision of this court in RT (Zimbabwe) & Ors [2010] EWCA Civ 1285, in which the court considered the impact upon an asylum claim of an actual or perceived need on the part of the claimant (were he to be returned to his country of origin) to lie about his political affiliations as the price of avoiding persecution. A like question had arisen in HJ (Iran) [2010] UKSC 31 in relation to lies concerning the claimant's sexual orientation. In that context the Supreme Court found it unacceptable that someone should have to live a lie in order to avoid persecution. In RT this court was dealing with individuals in Zimbabwe who had no distinct political affiliation. Delivering the judgment of the court Carnwath LJ stated (paragraph 30):

"… 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. "

8. The Secretary of State has indicated a willingness to concede this appeal on the footing that the case should be remitted to the Upper Tribunal for a further determination before a different Immigration Judge. The Statement of Reasons attached to the draft Consent Order provided by Miss Grey of counsel states:

"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.

9. As it seems to me the question is whether the established facts of the case are such as to demonstrate (to the appropriate low standard of proof) that the appellant would be at risk on return to Zimbabwe, having regard to the reasoning in RN paragraphs 230-234, and in RT paragraphs 36-37. What then are the established facts? As Mr Mahmood submitted in paragraph 6 of his first skeleton (which I have set out) the appellant has been out of Zimbabwe for a very considerable period and would be involuntarily returned from the United Kingdom as a failed asylum seeker. As regards any political affiliation, we know nothing except what is stated by IJ Sommerville at paragraph 32 of the his determination:

"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."

10. If the country guidance case of RN stood alone, as it were unqualified by what this court said in RT, it would I think be entirely clear that the case would have to be remitted for further factual investigation. The fact that the appellant would be returned to Zimbabwe as a failed asylum seeker after some years residence in the United Kingdom would not without more evidence conclude the case in her favour. Though she would no doubt face difficulty, the possibility of her sufficiently demonstrating loyalty to the regime could not be excluded. SIJ Southern effectively stated as much in ordering the second stage reconsideration on 14 October 2009. But of course we must consider the impact of RT.
11. As I read paragraphs 36 and 37 of this court's judgment in RT, a person who is able to demonstrate loyalty to the regime, but only by lying as to his political beliefs (or their absence), will not on that account be denied asylum. With respect, however, it seems to me that cases of this kind need to be approached with a considerable degree of caution. The court in RT was not laying down a general rule to the effect that any asylum-seeker returned to Zimbabwe who will be in a position to avoid risk of persecution only by falsely claiming to support the regime will be entitled to asylum. That would be not far distant from a more startling proposition, that only actual supporters of the regime may be safely returned. It remains the case, as was said at paragraph 230 of RN, that "each case will turn on its own facts and the particular circumstances of the individual are to be assessed as a whole". There may be nuances, or degrees, of political loyalty or even of political indifference; there may be questions as to what a returnee's family or associates may say or do. Giving an exaggerated, even a false, impression of loyalty in order to avoid persecution may on one particular set of facts be offensive, and on another set of facts inoffensive, to the conscience of the court.
12. In my judgment, therefore, if the court or tribunal is to make a proper judgment as to the merits of a claim for international protection in a case like this, it needs a good deal more information about the circumstances than is presently available here. As I have shown, the appellant was not found to be a credible witness when her appeal was heard by IJ Meah. We know only that she was a person with no political profile in Zimbabwe. That by no means necessarily shows that she would be forced to lie to avoid persecution, so as to engage the approach of this court in the case of RT. She has yet to establish as much.
13. For these reasons I would allow the appeal and remit the case to the Upper Tribunal for reconsideration de novo (but preserving IJ Meah's findings at 11-13 of his determination) before a panel consisting of judges other than IJ Meah and IJ Sommerville. It is with respect worth noting that a similar result was arrived at by this court in KM (Zimbabwe) [2011] EWCA Civ 275, arguably a stronger case for the appellant than this. At paragraph 27, referring to paragraph 246 of RN, Pill LJ stated:

"… 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:

14. I agree that this case should be remitted for the reasons given by Laws LJ. The question of what would or might happen to this particular appellant if returned requires closer examination than it has had.
15. I would add that this:  that there are regimes so oppressive as to take the take the line "If you are not for us, you are against us" and are so efficient (by the use of informers, secret police and so on) in their tyranny that the entire population must either actually be for or must dissemble. 
16. Whether a regime has reached that point depends acutely on current country guidance.  And whether if a particular individual if returned will be at real risk is a matter which calls for close examination.  If the individual is not truthful then the tribunal will have to consider the objective facts all the more carefully.

Lord Justice Wilson:

17. I also agree.