Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION [2011] CSOH 152
P244/11	OPINION OF J BECKETT QC (Sitting as a Temporary Judge) in the Petition of VH (AP) Petitioner; against THE SECRETARY OF STATE FOR THE HOME DEPARTMENT Respondent: for Judicial Review of a decision of the Secretary of State for the Home Department dated 24 January 2011 to refuse to accept representations on behalf of the petitioner as a fresh claim for asylum. ­­­­­­­­­­­­­­­­­_____________

Petitioner: Byrne, Advocate; McGill & Co

Respondent: Lindsay, Advocate; Office of the Solicitor to the Advocate General

15 September 2011

Introduction

[1] In this petition for judicial review, the petitioner (VH), a citizen of Zimbabwe, seeks reduction of a decision of the Secretary of State for the Home Department dated 24 January 2011 to refuse to accept representations on her behalf as a fresh claim for asylum. At the first hearing, Mr Byrne, Advocate appeared for the petitioner and Mr Lindsay, Advocate for the respondent.

The facts of the case

[2] The decision letter, No. 6/1 of process, narrates that the petitioner obtained a residence permit for Botswana which she claimed expired on 23 August 2003. She then obtained a United Kingdom visit visa in Botswana and flew to the United Kingdom via South Africa, arriving on 4 May 2003, entering with her own Zimbabwean passport. Her visa expired on 2 November 2003 but she made no attempt to extend it. The petitioner claimed asylum on 23 March 2009 and her claim was refused in a Reasons for Refusal Letter of 16 June 2009. Her appeal against this decision was refused by an Immigration Judge on 6 August 2009. An application for reconsideration was refused by a Senior Immigration Judge on 8 October 2009. On 14 December 2009 a petition was dismissed and she became appeal rights exhausted on 30 December 2009. Fresh representations of 22 January 2010 and 2 July 2010 were refused in letters of 28 January 2010 and 4 August 2010. A petition for judicial review was dismissed, having been withdrawn by the petitioner, on 2 December 2010.

[3] Further representations were made to the respondent on 20 December 2010 by solicitors acting for the petitioner. Leave to remain was refused and the respondent considered the representations under Immigration Rule 353.

The decision letter of 24 January 2011

[4] The decision letter is addressed to solicitors acting for the petitioner. It refers to their letter 'of 5.1.2011' which is plainly an erroneous reference to their letter of 20 December 2010, No. 6/2 of process. The decision letter confirms that leave to remain was not granted and that further submissions had been considered under Rule 353. The documents submitted by the petitioner are listed. Those parts of the letter which are relevant to the petitioner's case as presented are found in paragraphs 1-27. I will summarise these in some detail and quote some passages fully in order to set out the background against which the competing submissions were made.

[5] In paragraph 9, it is accepted that the petitioner's representations had not been considered previously. The issue is identified as being whether, when this material is taken together with previously considered material, it creates a realistic prospect of success. The manner in which that material should be considered is set out in paragraph 9 and is consistent with the approach of the Court of Appeal in WM (Democratic Republic of Congo) v Secretary of State for the Home Department [2007] Imm AR 337 (WM (DRC)). In paragraph 10 it is explained that the respondent has considered the new material alongside prior evidence derived from previous decisions and representations. In paragraph 12 there is recognition of the principle set out in paragraph 6 of WM (DRC) that previous reliability and credibility findings in relation to an applicant may be of little relevance where new material does not emanate from the applicant. Negative credibility findings by Designated Immigration Judge Murray in his Determination and Reasons of 6 August 2009, No.7/2 of process, are listed in paragraph 13: the judge had believed that the petitioner was not a genuine asylum seeker (paragraph 55); there was no evidence of her husband being a member of the opposition party, the Movement for Democratic Change (MDC) and she had stated that she was not political (paragraph 59); she was unable to demonstrate that her loyalty to the regime in Zimbabwe was not sufficient as she was found not to be a witness of truth in respect of the factual basis of her claim (paragraph 62).

[6] Paragraphs 15-27 of the decision letter deal with the claim under articles 2 and 3 of the European Convention on Human Rights and Fundamental Freedoms. At paragraph 16 it is explained that the petitioner's case had been considered by an Immigration Judge in the light of RN (Returnees) Zimbabwe CG [2008] UKAIT 00083.

[7] Paragraphs 17-27 deal with MDC activities. In paragraph 17 it is noted that although the petitioner is claiming to have been an active member of Zimbabwe Vigil since April 2009, she had not mentioned this in her asylum interview in May 2009 at which time she said she was not a member of the MDC in the United Kingdom and that she did not attend their meetings and had had no involvement with the MDC since arriving in the United Kingdom. In paragraph 18 observations are made about photographs and minutes submitted by the petitioner and it is observed that it appears that she paid £70 for membership of MDC on 4 October 2010 after appeal rights became exhausted.

[8] Paragraph 19 observes that in a letter of 18 November 2010 refusing an application for fresh consideration, the respondent had noted that the petitioner had not produced any photographs of herself at demonstrations or meetings and had not produced any minutes of meetings, after which photographs and minutes were submitted "Your client has systematically addressed each issue raised by the Secretary of State."

[9] Paragraph 20 deals with a letter from RF, Scotland Co-ordinator of Zimbabwe Vigil, and makes observations about the limitations of the information he provides. It is also noted that his evidence had previously been found to be unreliable.

[10] Paragraph 21 states:

"The letter dated 5.1.2011 also states that your client has now been appointed chair lady. She has produced no evidence to substantiate this claim. The letter also states that your client has attended more than seven meetings since she has been in the UK."

[11] Paragraph 22 queries why the petitioner's political activities were being raised at this stage in light of the basis of her claim.

[12] Paragraph 23 states:

"Your client has submitted several statements in support of her claims to be in the Zimbabwe Vigil. The statement from your client confirms that she is a member of the Zimbabwe Vigil and she is a supporter of the MDC. The letter from [FK] begins by outlining his immigration history. He goes on to state that he met your client at the MDC Branch Glasgow. He also claims that your client has been liaising with the women's chair in Harare. No evidence of this has been provided. He concludes by stating that your client will be at risk on return to Zimbabwe. There is nothing to suggest that he was privy to all the information when making these assertions.'

[13] Paragraph 24 states:

"Another Immigration Judge may come to the conclusion that your client is intentionally attempting to raise her political profile in the United Kingdom in order to bolster her asylum claim."

[14] In paragraph 25, reference is again made to findings by Designated Immigration Judge Murray: his paragraph 62 referred to at paragraph [5] above; that she may well be a Zanu PF supporter, that she would not be assumed to be a supporter of the MDC simply because she would be a failed asylum seeker from the UK and the appellant would not be of sufficient interest to warrant further interrogation at the airport, paragraph 63.

[15] Paragraph 26 of the decision letter refers extensively to a recent 'Fact Finding Mission' of 27 October 2010, the implication of which is that MDC supporters would be relatively safe if relocating in MDC dominated areas and urban areas. I note that these findings anticipate a change in country guidance which was made in EM and Others (Returnees) Zimbabwe CG [2011] UKUT 98 (IAC), to which I was referred by parties.

[16] Paragraph 27 states:

"In light of the recent and up to date fact finding mission, your client's negative credibility findings, the fact that she departed Zimbabwe on her own passport with no issues, it is considered your client could internally relocate to an urban area in Zimbabwe. Therefore it is not accepted that your client would be at risk on return to Zimbabwe. These are matters another Immigration Judge would take into consideration when applying the rule of anxious scrutiny."

The agreed legal background

[17] Mr Byrne drew my attention to the terms of Immigration Rule 353:

"When a human rights or asylum claim has been refused and any appeal relating to that claim is no longer pending, the decision maker will consider any further submissions and, if rejected, will then determine whether they amount to a fresh claim. The submissions will amount to a fresh claim if they are significantly different from the material that has previously been considered. The submissions will only be significantly different if the content:

(i) had not already been considered; and

(ii) taken together with the previously considered material, created a realistic prospect of success, notwithstanding its rejection."

[18] The meaning of "realistic prospect of success" had been explained in the Court of Appeal by Lord Justice Laws in R (AK (Sri Lanka)) v Secretary of State for the Home Department [2010] 1 WLR 855 at paragraph 34:

"I do not consider, with great deference, that the reasoning in ZT (Kosovo) is of great assistance in setting the bar, as it were, for the impact of the "realistic prospect of success" test in Rule 353. For what it is worth I should have thought that there is a difference, but a very narrow one, between the two tests: so narrow that its practical significance is invisible. A case which is clearly unfounded is one with no prospect of success. A case which has no realistic prospect of success is not quite in that category; it is a case with no more than a fanciful prospect of success. "Realistic prospect of success" means only more than a fanciful such prospect. Miss Giovanetti accepted this interpretation."

[19] This was a low hurdle and a modest test, Mr Byrne submitted with reference to the opinions of Lord Malcolm, at paragraph 32, in AH v Secretary of State for the Home Department [2011] CSOH 7 and Lord Hodge in RA v Secretary of State for the Home Department [2011] CSOH 68 at paragraph 19.

[20] In KD v Secretary of State for the Home Department 2011 SLT 645, it had been affirmed by an Extra Division of the Inner House that the decision by the Second Division in FO v Secretary of State for the Home Department 2010 SLT 1087, continues to bind the Outer House.

[21] In the opinion of the court delivered by Lord Mackay of Drumadoon in FO at paragraph 22 it is explained that a decision of the Secretary of State for the Home Department under Rule 353 as to the existence of a fresh claim for asylum can be challenged before the court only by way of judicial review. At paragraph 23, the court accepted guidance to be found in paragraphs 10 and 11 of the opinion of Lord Justice Buxton in the Court of Appeal in WM (DRC):

"[10] ...Whilst, therefore, the decision remains that of the Secretary of State, and the test is one of irrationality, a decision will be irrational if it is not taken on the basis of anxious scrutiny. Accordingly a court when reviewing a decision of the Secretary of State as to whether a fresh claim exists must address the following matters.

[11] First, has the Secretary of State asked himself the correct question?  The question is not whether the Secretary of State himself thinks that the new claim is a good one or should succeed, but whether there is a realistic prospect of an adjudicator, applying the rule of anxious scrutiny, thinking that the applicant will be exposed to a real risk of persecution on return: see §7 above.  The Secretary of State of course can, and no doubt logically should, treat his own view of the merits as a starting-point for that enquiry; but it is only a starting-point in the consideration of a question that is distinctly different from the exercise of the Secretary of State making up his own mind.  Second, in addressing that question, both in respect of the evaluation of the facts and in respect of the legal conclusions to be drawn from those facts, has the Secretary of State satisfied the requirement of anxious scrutiny?  If the court cannot be satisfied that the answer to both of those questions is in the affirmative it will have to grant an application for review of the Secretary of State's decision."

[22] Mr Byrne referred to what Lord Bonomy had said about anxious scrutiny, in delivering the opinion of the court in KD, paragraph 9:

"...Translating that into practice in the present case means that the decision letter should demonstrate that no material factor that could conceivably be regarded as favourable to the reclaimer has been left out of account in the review of the evidence."

[23] Mr Byrne referred to the decision of the Court of Appeal in TR (Sri Lanka) v Secretary of State for the Home Department [2008] EWCA Civ 1549 where Lord Justice Sedley in his opinion at paragraphs 32 and 33 noted a concession by the Secretary of State in that case and gave three reasons why the margin of appreciation normally enjoyed by the Secretary of State is slender in this class of case, albeit he was in agreement with the court's decision to dismiss the appeal.

'32....I do so, however, not by standing back and asking simply whether a rational Home Secretary could have decided that there was no fresh claim, but by taking a close look at the components of the claim and of what they arguably amount to. If the court, doing this, comes to the same conclusion as the Secretary of State, well and good.

33. If not, then a difficult question will arise whether the difference of view justifies intervention. This case, for the reasons that have been given, does not concretely raise that question but Ms Chan for the Secretary of State has accepted that the Secretary of State's margin of appreciation may be slenderer in the present class of case, that is to say in fresh claim cases, than in other judicial review contexts. This is so for at least three possible reasons which I mentioned when granting permission to appeal in this case: first, the Home Secretary acts as judge in her own cause in reaching the decision under attack; secondly, the matters ordinarily relevant to whether a claim is a fresh claim are matters which a court is for the most part at least is as well equipped as the Home Secretary to deal with; thirdly, in many of these cases, and the present is a strong example, we are concerned with what are potentially matters of life and death."

[24] Mr Byrne founded on MAS v Secretary of State for the Home Department [2011] CSOH 95, where Lord Malcolm, having noted the recent decision of the Inner House in KD, and a decision to similar effect in the Court of Appeal, MN (Tanzania) [2011] EWCA Civ 193, went on to say in paragraph 12:

"... The result is that I will simply quash the decision and remit the matter to the respondent for further consideration. It was in this context that counsel for the respondent invited the court to accept that such a procedure would be pointless since the ultimate decision was bound to be the same. I am not attracted to this submission. The court's discretion not to quash an unlawful decision is designed for clear cases where it is beyond doubt that the ultimate outcome must remain the same. I am not persuaded that this is such a case."

[25] When he came to reply, Mr Lindsay confirmed that he accepted Mr Byrne's analysis of the case law on these matters. He accepted what had been said about the approach of the court and that the test was a modest one in a Rule 353 case.

Submissions for the petitioner

[26] Mr Byrne had prepared and lodged a note of his argument, No.10 of process, and made submissions largely in line with it. I have considered both his written and oral submissions.

[27] His principal point related to paragraph 21 of the decision letter which begins,

"The letter dated 5.1.2011 also states that your client has now been appointed chair lady. She has produced no evidence to substantiate this claim..." Mr Byrne submitted that this was a simple but profound error. The letter referred to had enclosed statements both from the petitioner and from FK. In FK's statement, No. 6/5 of process, he had stated:

"...I joined the MDC Glasgow branch as a committee member, and in 2009 I was elected the Chairperson for the Glasgow branch. This was when I met [VH]. [VH] was elected by the MDC branch members as Women's Chairperson towards the end of 2009. This position involves liaising with district Chairwoman and liaising with the women's chair in Harare..."

The petitioner's own statement, No. 6/4 of process, had also been put before the respondent. She had stated:

"...I joined the Glasgow Branch of the MDC in March 2009. The chairman is [FK]. We held our meetings at Caledonian University in the foyer. I have attended more than 7 meetings, and I was appointed a chairlady for the women's wing of the Glasgow branch. This position requires me to lead discussions about political issues, including any fundraising drives for other MDC groups in the UK. We have successfully raised funding for the under privileged women's group based in Riuwa in Zimbabwe..."

The failure to take into account FK's information on this point was an illustration of a failure to demonstrate that anxious scrutiny had been applied. Whilst previous adverse credibility findings might legitimately render suspect and reduce the weight to be afforded to the petitioner's statement, this did not apply to information from a third party such as FK: WM (DRC) at paragraph 6.

[28] Whilst it might be prudent for the petitioner to provide corroboration, this was not required as a matter of law. Mr Byrne founded on the opinion of an Extra Division delivered by Lord Reed in RAAP v Secretary of State for the Home Department [2010] CSIH 23 and on the opinion of Lord Stewart in TNC v Secretary of State for the Home Department [2011] CSOH 95A. In RAAP, an Immigration Judge's decision had been overturned by a Designated Immigration Judge. One of the bases for this was that the original immigration judge was found to have erred by making findings as to the likelihood of the applicant's wife being able to obtain particular medical treatment in Pakistan. It was said that the original judge had not referred to any objective evidence. The original judge had noted the absence of any documentary confirmation of the position, but she had accepted the evidence of the applicant and his wife on the point. In paragraph 4 of his opinion, Lord Reed explained that the Designated Immigration Judge had been in error.

"... It was a matter for the Immigration Judge to consider that evidence and accept it or reject it. It did not require as a matter of law to be supported by documentary evidence or by "objective evidence": that is to say, evidence from an independent source..."

In TNC, the Secretary of State's decision-maker had stated in a determination "You have submitted no credible evidence to suggest that another Immigration Judge would come to a different conclusion [on the petitioner's claim to be of the Yazidi faith.]" It was contended for the petitioner that the respondent had failed to take account of the statement of the petitioner's sister to the effect that the petitioner was a member of the Yazidi faith in Iraq, which was the critical issue for the petitioner's asylum application. Lord Stewart concluded that the decision-maker had made the determination without taking account of the terms of the sister's statement and that the determination was accordingly flawed because it had overlooked clearly relevant material. On that basis the determination was reduced.

[29] Accordingly Mr Byrne submitted that this error of law and failure to take account of relevant material, and thus an absence of anxious scrutiny, dictated that the decision be reduced.

[30] Mr Byrne submitted that paragraph 23 of the decision letter was a very superficial analysis of FK's statement which failed to take into account that the petitioner held a position as chairwoman. This was evidence of a failure to bring anxious scrutiny to bear on this fresh claim.

[31] Turning to paragraph 19 of the decision letter, Mr Byrne explained the background with reference to a decision letter of 18 November 2010, No. 6/3 of process. Mr Byrne pointed out that in responding to a previous application for reconsideration, the Secretary of State had observed that no minutes of meetings had been produced to support the petitioner's claim of having attended meetings of Zimbabwe Vigil and no further evidence that she had attended any demonstrations had been provided. It was stated in that letter:

"...It is considered that the extent of her involvement is a fact which is capable of being established to a greater degree than the letter from [RF] actually provides."

Mr Byrne argued that by viewing as a negative consideration the petitioner's having made material available in response to points made by the respondent in a previous decision, the respondent had failed to take account of every material factor favourable to the application.

[32] Mr Byrne argued that the respondent had not explained if she accepted whether or not the petitioner was a women's chair person, a member of the MDC and whether she had taken part in relief or activities. The respondent had not explained whether the evidence of the petitioner's witnesses would be accepted as reliable by an immigration judge. With reference to TN (Uganda) v Secretary of State for the Home Department [2006] EWCA Civ 1807, he submitted that all that was required of information in this context was that it was apparently credible, even if it may not ultimately find favour.

[33] With reference to paragraph 24 of the decision letter (the prospect that an immigration judge may conclude that the petitioner was acting in bad faith in raising her political profile) Mr Byrne submitted that even if this was so, it would not necessarily rule out her claim. In this regard he founded on Danian v Secretary of State for the Home Department, [2000] Imm AR 96 and a passage from the leading opinion given by Lord Justice Brooke in the Court of Appeal with whose opinion Buxton LJ and Nourse LJ agreed.

"For all these reasons I do not accept the Tribunal's conclusion that a refugee sur place who has acted in bad faith falls outwith the Geneva Convention and can be deported to his home country notwithstanding that he has a genuine and well-founded fear of persecution for a Convention reason and there is a real risk that such persecution may take place. Although his credibility is likely to be low and his claim must be rigorously scrutinised, he is still entitled to the protection of the Convention, and this country is not entitled to disregard the provisions of the Convention by which it is bound, if it should turn out that he does indeed qualify for protection against refoulement at the time his application is considered."

[34] In addressing the materiality of those flaws which he claimed to have identified in the decision, Mr Byrne acknowledged the recent country guidance in EM and Others (Returnees) Zimbabwe CG [2011] UKUT 98 (IAC), but he observed that it did not change previous country guidance for Zimbabwe so far as concerned with the dangers to returnees at Harare airport. He founded also on HS (Returning asylum seekers) Zimbabwe CG [2007] UKAIT 00094 and AA (Risk for involuntary returnees) Zimbabwe CG [2006] UKAIT 00061.

[35] Mr Byrne's analysis of these cases and how they might bear on the petitioner's situation was in line with paragraphs 32 and 33 of his written argument:

' Reference is made to HS. There is a two stage process of interview at the airport, there is not a risk at the first stage but there is at the second, a person identified of interest in the first stage will reach the second (§260). The CIO (Zimbabwean intelligence service) monitor all returning passengers at the airport in order to identify anyone perceived to be "politically active in support of the opposition" (§264). All deportees will be handed over to the CIO for questioning. Those deportees will have been identified in advance from the passenger manifest, and the CIO will have formed a preliminary view who is of interest (§265). The CIO will be interested in anyone with an adverse political profile (§266). Any deportee who is taken to the first stage questioning will not be expected to lie (§271). There is a significant effort put into obtaining intelligence concerning those in the UK who do support the opposition (§279). AA (2) is good law in respect of risk on return (§282). Reference is made to AA (2). The petitioner will be removed from the UK and will be subject to the first stage interview (§248). The first stage interview is to determine whether the petitioner has a political profile adverse to the regime (§249). If the interview shows a political profile she will be taken away from the airport for interrogation where there is a real risk of torture and mistreatment (§250-1). If the petitioner can return voluntarily without risk she may not be a refugee (§255). The petitioner cannot do so. The petitioner falls within the risk categories identified (§245). Those risk categories are outlined in SM and Others and referred to at §32 of HS. See paragraph 42 of SM along with 51 and 43 - all cited on pages 10-12 of HS. Those risk factors include those perceived to be politically active and include those identified in SM at 43. At 43 the tribunal identified for example, campaigners, MDC members, MDC supporters, those giving rise to a suspicion of support for the MDC etc etc.'

[36] Mr Byrne argued that as an MDC member, someone who was engaged in fund-raising and a chair person, the petitioner could not return voluntarily. He then drew my attention to EM (Returnees) and examined the decision in relation to the appellants COM and CLM. This case confirmed that the evaluation of risk at the point of return, was a fact-sensitive exercise. Mr Byrne referred to the Court of Appeal decision EM (Zimbabwe) [2009] EWCA Civ 1294 and in particular to the opinion of Lord Justice Patten at paragraphs 28 and 29 and reference to the assessment of the likelihood of sur place political activity being known to the Zimbabwean intelligence service being one of inference and degree: "The more significant the political activity, the more likely that it will become apparent and therefore be of interest to those monitoring it."

[37] In conclusion, Mr Byrne submitted that the petitioner has more than a fanciful prospect of success, and thus that errors of law were material, and the decision should be reduced.

Submissions for the respondent

[38] In the answers for the respondent, the point is made that the petitioner did not have a fresh claim for the purposes of Rule 353 as she had no realistic prospect of success because she could internally relocate to an urban area of Zimbabwe. Mr Lindsay did not challenge Mr Byrne's submissions in relation to the country guidance as it related to what happens at Harare Airport and Mr Byrne accepted that following EM (Returnees), his case could only be based on risk related to the procedures adopted by the authorities for returnees at the airport. Accordingly, the issue came to be focussed on what would happen to the petitioner at Harare Airport.

[39] Mr Lindsay's contention was that the further representations did not constitute a fresh claim for the purposes of Rule 353 as there was no realistic prospect of success. When regard was had to the substance of the decision, that there was no realistic prospect of success, the decision could be seen to be lawful and reasonable.

[40] It was well recognised that sur place claims should be subject to rigorous scrutiny, as they would be by an immigration judge, and this was how the respondent had approached the issue. He referred to Danian at paragraph 27 and the observation that the credibility of a refugee sur place who had acted in bad faith would be likely to be low. In the present case, this ought to be considered alongside a background of adverse findings as to the petitioner's credibility on previous occasions.

[41] Mr Lindsay referred to the opinion of the Court of Appeal given by Lord Justice Elias in TM (Zimbabwe) v Secretary of State for the Home Department [2010] EWCA Civ 916. The case law there referred to vouched that opportunistic post-flight activities will not necessarily be treated as creating a real risk of persecution in the claimant's home country because they may not come to the attention of the authorities of that country or because the opportunistic nature of such activities will be transparent.

[42] Mr Lindsay argued that the basis of the decision of 24 January 2011 was that the claimed activities were of a low level and as such were unlikely to be known to the Zimbabwean authorities in a case where the petitioner was not asserting that they knew about her. He founded on the opinion of Lord Hodge in a Zimbabwe case, TN v Secretary of State for the Home Department [2011] CSOH 35, where, he submitted, the court had taken the approach described by Lord Justice Sedley at paragraph 15 of his opinion YB (Eritrea) v State for the Home Department [2008] EWCA Civ 360. Lord Hodge had assessed the petitioner's sur place activities in the context of other material, including previous claims which were rejected as incredible. That was the proper approach and that is what the respondent had done in this case.

[43] Even if the decision could have been drafted more clearly, the substance of the decision was that the respondent had considered the previous credibility findings, failed fresh claims which had grown in the re-telling, and, taken at their highest, political activities at a low level where the petitioner did not suggest that she is known to the Zimbabwean authorities. In these circumstances, it could not be said that there was a real risk to the petitioner and so there was no realistic prospect of success before an immigration judge. The respondent had correctly applied WM (DRC), adequate reasons were given and a lawful and reasonable conclusion had been arrived at.

Discussion

[44] The difficulty with Mr Lindsay's construction of what the decision was based on is that it finds only limited support in the decision letter. I cannot identify where it was concluded that the petitioner's sur place activities were accepted to have taken place but deemed to be at such a low level that they would not expose her to risk of ill-treatment from the Zimbabwean intelligence services at Harare Airport.

[45] Paragraph 24 of the decision letter suggests that an Immigration Judge may conclude that the petitioner was pursuing political activities in bad faith. That observation may not be objectionable in itself, but the treatment of the issue ends there. If that paragraph is the basis for a conclusion that an Immigration Judge would also conclude that the Zimbabwean authorities would see through the petitioner's activities, it is not made clear in the decision letter.

[46] It appears that the decision maker failed to consider that sur place activities, even if carried out with the intention of bolstering an asylum claim, may still give rise to a well-founded fear of persecution or real risk of suffering serious harm and that that possibility ought to have been considered: Danian, YB (Eritrea) at paragraphs 8-15, Council Directive 2004/83/EC of 29 April 2004 articles 4(3)(d) and 5(2). That consideration must be a fact-sensitive exercise. It may be that this exercise was not undertaken because the decision maker was of the view, expressed in paragraph 24 of the letter, that the petitioner's political activities were undertaken in order to boost her claim for asylum or it may be that the petitioner's claim to have a position as chair woman was rejected on grounds of credibility. The latter view might gain some support from the terms of paragraphs 21 and 27 of the letter.

[47] The observation in paragraph 21 of the decision letter, 'She had produced no evidence to substantiate this claim', referring to the petitioner being chair lady of the women's wing of a branch of the MDC, is difficult to understand. She had produced evidence, in her own statement. More compellingly in the circumstances, there was also evidence to this effect in the statement of FK. Corroboration was not required as a matter of law and the respondent appears to have fallen into a similar error to that identified in RAAP, to which I have referred at paragraph 28 above.

[48] This error is compounded by the fact that there was evidence available to substantiate the petitioner's claim that she held a position of chairwoman. Whilst the respondent must have had regard to the statement of FK, the terms of paragraphs 21 and 23 of the decision letter suggest that the decision maker failed to identify that there was material to support the petitioner's position about the post she held. No basis is identified in the decision letter, and none was suggested to me in the hearing, to impugn the apparent credibility of information from FK. Previously adverse findings and any reservations about the credibility of the petitioner ought not, on the basis of WM (DRC) paragraph 6, to undermine evidence of a third party. Despite that principle being noted in the decision letter, I am not satisfied that it was applied.

[49] These errors and deficiencies, particularly when viewed together, leave me unable to say that the decision letter demonstrates that no material factor that could conceivably be regarded as favourable to the petitioner has been left out of account in the review of the evidence. In other words, the decision fails to satisfy the requirement of anxious scrutiny.

[50] I am bound by the decision of the Second Division in FO, as explained by the court in KD. Whilst the court in KD, in paragraph 7 of its opinion, accepted that there will be some cases in which it will be appropriate for the matter in issue to be determined by the reviewing judge, I am unable to regard these flaws in the decision as lacking materiality to such an extent that I can decide this case myself.

Decision

[51] For these reasons, I therefore sustain the petitioner's plea in law and I repel the respondent's pleas in law. I reduce the decision of 24 January 2011 with the result that the matter returns to the Secretary of State for reconsideration. I reserve meantime the question of expenses.