AA (Involuntary returns to Zimbabwe) Zimbabwe  UKAIT 00144
Date of hearing: 5, 6 & 7 October 2005
Date Determination notified: 7 October 2005
|Secretary of State for the Home Department||RESPONDENT|
On the evidence available to this Tribunal and in the light of the Respondent's concession, failed asylum-seekers returned to Zimbabwe are at risk of persecution for a Convention reason and are accordingly refugees. The process of return and reception in Zimbabwe is different from that in other countries with which the Tribunal is familiar.
"The Tribunal is satisfied in the light of the statements made by the Zimbabwean authorities that returnees are regarded with contempt and suspicion on return and do face a very hostile atmosphere. This by itself does not indicate that all returnees are at real risk of persecution but that returnees are liable to have their background and circumstances carefully scrutinised by the authorities."
The Appellant's claim
The Appellant's credibility
The Immigration Judge's determination
"Right now I have no shelter in Zimbabwe and my life is in danger. I will starve if I go there as I have no way of getting money. Nowhere to sleep. And one of my parents might get arrested when I go back because they say that the Zimbabweans in the UK are the ones supporting the opposition. I could even be taken at the airport. I think that's all."
"I turn to address that which has been the subject of the Appellant's initially stated fear and of his keen emphasis at the hearing, namely whether he faces a risk of persecution and abuse on return solely as a failed asylum seeker. In this regard, I make the finding that the fear expressed by the Appellant is genuinely held. For all that he has, in my finding, manufactured that portion of his account alleging past persecution and political activity, I am satisfied that the fear he currently expresses is subjectively real to him and affects him to a not insubstantial degree. The question must be, however, whether there are objective grounds justifying the holding of such a fear such as show that the Appellant is to a reasonable degree of likelihood at risk of such persecution or abuse."
The Respondent's application for review
Error of law
The legal context
Establishing a general risk
"In those circumstances, as it seems to me, the 'real risk' … could not be established without its being shown that the general situation was one in which ill-treatment of the kind in question generally happened: hence the expression "gross and systematic". The point is one of logic. Absent evidence to show that the appellant was at risk because of his specific circumstances, there could be no real risk of relevant ill-treatment unless the situation to which the appellant would be returning was one in which such violence was generally or consistently happening. There is nothing else in the case that could generate a real risk. In this situation, then, a 'consistent pattern of gross and systematic violation of fundamental human rights', far from being at variance with the real risk test is, in my judgment, a function or application of it."
"37. I want to add a word, however, about the evaluation of conditions which are alleged to create a real risk of inhuman treatment. The authority of this court has been lent, through the decision in Hariri , to the formulation that ill-treatment which is 'frequent' or even 'routine' does not present a real risk to the individual unless it is 'general' or 'systematic' or 'consistently happening' …
38. Great care needs to be taken with such epithets. They are intended to elucidate the jurisprudential concept of real risk, not to replace it. If a type of car has a defect which causes one vehicle in ten to crash, most people would say that it presents a real risk to anyone who drives it, albeit crashes are not generally or consistently happening. The exegetic language in Hariri suggests a higher threshold than the IAT's more cautious phrase in Iqbal  UKIAT 02239, 'a consistent pattern', which the court in Hariri sought to endorse.
39. There is a danger, if Hariri is taken too literally, of assimilating risk to probability. A real risk is in language and in law something distinctly less than a probability, and it cannot be evaluated by lexicographic stages into something more than it is."
"I have to say that I have some misgivings about this. Having had the opportunity of reading in draft what my Lord, Lord Justice Sedley, has to say on the point I respectfully agree with it."
"It is quite true that in Mr Batayav's own appeal Sedley LJ expressed some reserve about the particular language used in that statement of Laws LJ. That was not the view, as I understand it, of the other members of the court. However, be that as it may, it is clear that to establish an Article 3 case of the sort that Mr Batayav seeks to establish significant evidence must be given of conditions in the system that are universal, or very likely to be encountered by anyone who enters that system."
The evidence for the Appellant
The evidence of witness 1
The evidence of Professor Ranger
"threats by the United Kingdom to deport about 10,000 Zimbabweans which could be a cover to deploy elements trained in sabotage, intimidation and violence and destabilise the country before and during next March's Parliament elections."
The witness statement of witness 2
The statement of witness 3
The witness statement of witness 4
The witness statement of witness 5
Statement of witness 6
The witness statement of witness 7
The evidence of witness 8
The Respondent's evidence
The field report
"As a result, and based on the treatment that others who are of interest to the Government face, eg NGO activists, they could imagine that the treatment they might face would include having their luggage tampered with and extended questioning by immigration officials and the CIO. Once picked up by the CIO, it is likely that the line of questioning would extend well beyond the issue in hand to general views, connections, background. The source would imagine that the treatment for those who are returning from the UK could be worse for those from other countries because of the political climate between the two countries."
Oral evidence – Mark Walker
"It is, however, fantasy to say that NGOs have a system in place that can be relied upon to produce specific evidence of the mistreatment of individual asylum seekers removed by the United Kingdom, either at the hands of the CIO on arrival or thereafter. There is no such tracking system."
Oral evidence – Iain Walsh
"A number of significant NGO bodies continue to consider that they are capable of operating in a way which would effectively identify evidence of human rights abuses of returned asylum seekers."
Country of origin information report
C M G OCKELTON
A Human Rights NGO Forum
B Regional HR NGO
D A church organisation
G An international human rights organisation
H Zimbabwe Peace Project
I International Organisation for Migration
J Zimbabwe Lawyers for Human Rights
K Zimbabwe Association of Doctors for Human Rights
L British Airways
M International humanitarian organisation
N A diplomatic source