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)
(Mr Justice Collins and Upper Tribunal Judge Gleeson)

		Royal Courts of Justice Strand London WC2A 2LL
		6 October 2015

1. LADY JUSTICE GLOSTER: This is an application by the claimant (whom I shall refer to as S but all names are to be anonymised), who is a national of Zimbabwe, born on 13 September 1979 in Chitungwiza in the south of Harare.
2. S seeks permission to appeal from the decision of the Upper Tribunal against the refusal of S's claim for judicial review. The application was heard on 8 October 2013 and the decision was notified on 14 October 2014. Permission to appeal to this court was sought from the Upper Tribunal but refused by the Upper Tribunal in an order dated 10 June 2014.
3. There is also an application for an extension of time. However, I propose to consider this application on the merits before considering the application for an extension of time.
4. The claim before the Upper Tribunal was a claim for a judicial review of a decision by the Secretary of State dated 11 October 2012 refusing to accept S's request to accept his further submissions dated 12 September 2012 as a fresh claim for asylum.
5. Although permission to apply for judicial review was originally refused on the papers, on 25 June 2013 Upper Tribunal Judge Lane, at a hearing where the Secretary of State was unrepresented, granted permission to apply for judicial review.
6. It was in those circumstances that the Upper Tribunal, permission having been granted, came to consider the substantive claim for judicial review.
7. The Upper Tribunal, consisting of Collins J and Upper Tribunal Judge Gleeson, as well as considering the Secretary of State's refusal, also took into account the First-tier Tribunal decision given on 1 March 2010 whereby S's appeal against the Secretary of State's original application for asylum was dismissed.
8. The judge went through the claim and the matters that S had raised in considerable detail and, as the Upper Tribunal summarised, some of the Secretary of State's adverse findings against S were rejected. But at the end the judge came to the conclusion that, having heard from the applicant, S, he was not to be believed. I quote paragraph 25 of the First-tier Tribunal's decision:

"Having regard to all the above and particularly the fact that the Appellant could not quote the full name of the MDC in interview or in his grounds of appeal; the fact that he didn't know the date that the MDC split or the leader of the smaller faction of the same; that he didn't claim asylum until January 2009 despite being allegedly arrested in Zimbabwe on two occasions prior to him leaving in 2002 and the threats being made against him prior to his mother's alleged death in 2005; the inconsistencies regarding the circumstances surrounding his mother's death and her alleged role in the MDC I do not find that the Appellant or his mother have ever been involved with the MDC or supporters of the same; that he was arrested in Zimbabwe; that threats were made against him prior to his mother's death; that he was involved in the MDC in the United Kingdom or that his mother was murdered by the Zanu-PF. Additionally also having regard to the Appellant's general credibility I do not find that his brother and other family members fled Zimbabwe because of their involvement with the MDC."

9. The Upper Tribunal went on to consider further evidence that was before the judge in relation to vigils outside the Zimbabwe embassy in this country, referred the Upper Tribunal to the conclusion that the judge found that the applicant had not attended five to six vigils and that he had said what he had said in an attempt to bolster his claim.
10. The Upper Tribunal considered certain further material that was before it but came to the conclusion at paragraph 8 of the Upper Tribunal's judgment that essentially there was nothing produced which could show that the adverse credibility findings made by the Immigration Judge in January 2010 should not stand.
11. The Upper Tribunal went on to refer to the recent decision of CM v Secretary of State for the Home Department, which was the important recent Country Guidance case, neutral citation CM (EM country guidance; disclosure) Zimbabwe CG [2013] UKUT 00059 (IAC). That was a case which after EM being set aside the matter was reconsidered in CM having regard to the disclosure of information which had not been properly disclosed at the time of EM.
12. The Upper Tribunal carefully considered the submissions of Mr Hussain (who appeared for the applicant before the Upper Tribunal and who has also appeared in this court and whose helpful submissions and advocate's statements I have read). Mr Hussain submitted that the materials put forward to the Upper Tribunal in relation to the sur place activities of the claimant indicated that S had sympathy with and had indeed been involved with the MDC and, accordingly, if he were returned to Zimbabwe he might well wish to exercise those options and to involve himself in MDC activities, which, if he did so, would be likely to attract the adverse attention of ZANU-PF. Indeed Mr Hussain also submitted to the Upper Tribunal that he would be reasonably likely to engage in such activities so that he would attract the attention of ZANU-PF.
13. The Upper Tribunal then went on to conclude that on the findings of the Immigration Judge it was apparent "that the activities here of this appellant were regarded as purely opportunistic and it certainly is a matter of considerable doubt whether he does genuinely hold MDC views or, more importantly, would in any way wish to express such views or engaged in any activities in Zimbabwe". The Upper Tribunal then said:

"Mr Hussain submits that that is a question of fact which would have to be determined notwithstanding the adverse findings of the Immigration Judge which of course would be a starting point. Accordingly it would not be right for this court to take the view that it is satisfied that he is merely engaging in the sur place activities such as they are with a view to trying to bolster a non-existent claim, although as I say [I interpolate that that is Collins J, the Upper Tribunal Judge, speaking), there is a very strong suspicion that, on the facts of this case, that is indeed the true position."

Collins J went on to say:

"14. But that does not get him home because there is no indication; no evidence which supports any suggestion that he has achieved a profile such as would cause him to feature on a list of those targeted. Indeed there is no reason to believe that he would in any way be subjected to such a profile. Nor in Harare is there any reason to believe that it is reasonable to shows that any political activities, having regard to what he has done here that he would wish to engage in, would mean that he attracted the adverse attention of Zanu-PF so as to produce a real risk that he would be either persecuted or treated in such a way as breached his human rights. His activities are quite insufficient, in my view, to justify a fear that that might be the position in Zimbabwe. It is, having regard to the credibility findings generally and having regard to what we know about his activities here and the situation as it now is in Zimbabwe as set out in CM, impossible to accept that any Immigration Judge would be likely to find matters in his favour.

15. He does not, therefore, meet the test which is to be applied in deciding whether a fresh claim exists and I would dismiss this claim."

In other words, the Upper Tribunal reached the conclusion that in any event the applicant would not satisfy the test set out in CM in relation to Zimbabwe and concluded that, having regard to the earlier credibility findings generally and having regard to what the Upper Tribunal knew about his activities here, it was impossible to accept that any Immigration Judge would be likely to find matters in his favour.

14. In his skeleton argument and advocate's statement and grounds of appeal, Mr Hussain submitted that the Upper Tribunal erred in finding that the "modest" fresh claims test was not satisfied in this case and submitted to this court that, although it was accepted that certainly historically S's credibility was highly questionable, the question was whether the applicant, S, would continue regardless of motive or sincerity his current activities here in the United Kingdom upon his return to Zimbabwe (see Danian v Secretary of State for the Home Department [1999] EWCA Civ 3000); and, secondly, what would happen to the applicant if he did. In this context he relied upon the fact that in ST v Secretary of State for the Home Department [2012] EWHC 988 (Admin) at paragraph 54 reference was made to the case of Thangeswararajah, where Collins J made it clear that:

" ... where credibility was in issue, it would often be the case that the only way of resolving such matters was by way of an oral hearing before an immigration judge and that a determination of that issue could not and should not be left to a paper decision of a decision-maker taking a decision on behalf of the SSHD."

Mr Hussain relies upon the statement Collins J in that case where Collins J stated:

"Where there are no clear findings [of an adjudicator or immigration judge], the defendant is at risk of assuming more than a role of determining whether a new judge would realistically reach a decision favourable to the claimant. Uncertainties should be unravelled by evidence or an opportunity for evidence to be adduced. That is a consequence of the obligation of anxious scrutiny."

Mr Hussain submits that the Upper Tribunal and the Secretary of State failed to engage with the central issue of credibility when considering whether the new evidence and the new materials amounted to a new claim or whether or not there should be judicial review.

15. I do not accept those arguments. It seemed to me that, consistently with Collins J's approach in Thangeswararajah, this was a case where there were clear findings of the First-tier Tribunal when it refused the appeal from the original immigration decision. This was not a case where there was sufficient uncertainties on the evidence before the First-tier Tribunal or on the materials before the Upper Tribunal to require the Upper Tribunal to come to the decision that the matters subsequently relied upon in 2012 gave rise to uncertainties such as would justify a new judicial hearing with further investigation as to the applicant's credibility. This was a case where there were clear findings and the additional material did not suggest any need whatsoever for a further judicial hearing.
16. In my judgment, on this ground there is no reasonable prospect of appeal.
17. In the second substantive ground it is argued by Mr Hussain that the Upper Tribunal's suggestion that the current case law such as CM, which I have already referred to, does not assist S is also arguably wrong. The submission by Mr Hussain is that if regard is had to paragraph 5(5) of CM, this was a case where the applicant, S, arguably fell within the second or third categories of the categories referred to there. In subparagraph (5) the court said:

"A returnee to Harare will in general face no significant difficulties, if going to a low-density or medium-density area. Whilst the socio-economic situation in high-density areas is more challenging, in general a person without ZANU-PF connections will not face significant problems there (including a 'loyalty test'), unless he or she has [1] a significant MDC profile, which might cause him or her to feature on a list of those targeted for harassment, or [2] would otherwise engage in political activities likely to attract the adverse attention of ZANU-PF, or [3] or would be reasonably likely to engage in such activities, but for a fear of thereby coming to the adverse attention of ZANU-PF."

Mr Hussain submits that the Upper Tribunal rejected the submission that S arguably falls into the latter two of the risk categories on the basis that it did not believe S on the one hand and that his activities would not place him at risk in any event. He also submits that the third risk category was ignored by the Secretary of State in her decision.

18. In my judgment, these complaints are not sufficient to establish that the applicant, S, has a reasonable prospect of success on appeal. In my judgment, the Upper Tribunal's decision at paragraphs 14 and 15 of their judgment sufficiently take into account the factors set out at paragraph 5(5) in CM (Zimbabwe) and adequately addresses the view that an Immigration Judge would take of the fresh claim.
19. Accordingly, despite Mr Hussain's helpful and well-articulated submissions, I am not satisfied that this proposed appeal has a reasonable prospect of success. In my judgment, the Upper Tribunal were entitled to come to the conclusion which they did on the materials before them. Accordingly, I refuse permission to appeal and in those circumstances I also refuse an extension of time.