AA (Risk for involuntary returnees)
| Jurisdiction | England & Wales |
| Judge | The Hon Mr Justice Hodge,Warr,Southern |
| Judgment Date | 02 August 2006 |
| Neutral Citation | [2006] UKAIT 61 |
| Court | Asylum and Immigration Tribunal |
| Date | 02 August 2006 |
[2006] UKAIT 61
Asylum and Immigration Tribunal
THE IMMIGRATION ACTS
The Hon Mr Justice Hodge OBE, President Senior Immigration Judge Warr Senior Immigration Judge Southern
For the Appellant: Mr M. Henderson, instructed by The Refugee Legal Centre
For the Respondent: Mr S. Kovats, instructed by The Treasury Solicitor
AA (Risk for involuntary returnees) Zimbabwe CG
A failed asylum seeker returned involuntarily to Zimbabwe does not face on return a real risk of being subjected to persecution or serious ill-treatment on that account alone.
SM and Others (MDC — internal flight-risk categories) CG [2005] UKIAT 00100 is reaffirmed. Two further risk categories are identified: those whose military history discloses issues that will lead to further investigation by the security services upon return to Harare Airport and those in respect of whom there are outstanding and unresolved criminal issues.
A deportee from the United Kingdom who, having been subjected to the first stage interview at the airport, is allowed to pass through the airport is likely to be the subject of some monitoring in his home area by the localpolice or the CIO but the evidence does not indicate a real risk of persecutory ill-treatment for those who are being monitored solely because of their return from the United Kingdom.
The general country conditions are extremely difficult butthose difficulties will not generally be sufficiently severe to enable an appellant to rely upon article 3 to resist removal.
This reconsideration comes before us by order of the Court of Appeal ( AA [2006] EWCA Civ 401). That Court set aside the determination of a panel of the Asylum and Immigration Tribunal ( AA [2005] UKAIT 00144) (“the first Tribunal”). The first Tribunal, following a hearing in October 2005, found there to be a material error of law in the determination of the immigration judge who had allowed the appellant's appeal against the decision of the respondent to remove him as an illegal entrant. The first Tribunal substituted a fresh decision to allow the appeal on asylum and human rights grounds. The appellant's appeal was remitted to this Tribunal by the Court of Appeal to be heard de novo. But we do refer where appropriate to the determination of the first Tribunal. It is important to recognise that we have before us much evidence that was not before the first Tribunal and that this is not areview of the decision of the first Tribunal.
Over a five day period commencing on 3 rd July 2006 we heard from a number of witnesses who gave oral evidence. We received submissions from both counsel who have each provided skeleton arguments. The scale of the material before us is so extensive that it was not realistically possible for all the evidence to be discussed in submissions. The documentary evidence is arranged in six volumes. Volume one contains the evidence in judicial review proceedings that now stand adjourned pending the completion of the process of this Tribunal giving country guidance in relation to the issues with which this reconsideration is concerned. Volumes two and three contain the evidence that was before the first Tribunal in AA [2005] UKAIT 00144. Volumes four and five contain the additional evidence filed by the respondent and the appellant respectively. Volume six contains further evidence and it is into this volume that further documentary evidence has been inserted as it emerged during the hearing. When we refer to this documentary evidence it is by volume and page number (volume number/page number).
After the hearing had concluded we received a document from Mr Kovats headed “Note on Statistics”. Some days later we received a much longer note from Mr Henderson in which he objected to us having regard to Mr Kovats' note. He argues that it is inappropriate that additional evidence be introduced in this way. Mr Henderson then, over thirteen pages, responds to the material in Mr Kovats' note. We have decided to have no regard to the additional information contained in any communication received after the hearing. We reach our conclusions upon the evidence, both written and oral, put before the Tribunal during and prior to the hearing alone.
We have had regard to all of the documentary evidence listed in the schedule to this determination as well as the many witness statements and other material listed in the index to the six volumes of documentary evidence. We cannot discuss it all specifically within this determination. We have decided, at the request of and with the consent of the parties that the identity of the majority of the witnesses and organisations is to be kept anonymous. This means that many of the documents in the schedule are also anonymised.
AA, who was born on 8 th April 1975, is a citizen of Zimbabwe. He arrived at London City airport on 6 th November 2002, having travelled via South Africa and France. He travelled on his own passport, which remains valid. He was granted temporary admission but absconded and next came to notice when he came to the attention of police two and a half years later. At first he gave a false name, that of his brother who had been granted leave. But checks showed that the leave had expired. AA then gave his correct name, and was detained under immigration powers. He then claimed asylum.
AA's asylum claim was refused on 27 th July 2005 and he appealed to an immigration judge who rejected as untrue his claim to be at risk on account of anything he had done in Zimbabwe. But he allowed the appeal on asylum and human rights grounds. He found that the appellant would face, on return to Zimbabwe, a real risk of being subjected to persecutory ill-treatment at the hands of the authorities simply because he would be seen to be a person who was being returned to Zimbabwe after having made an unsuccessful asylum claim in the United Kingdom. In reaching that conclusion the immigration judge had relied upon a recent news report concerning country conditions in Zimbabwe which he had found on the internet after the hearing.
Reconsideration of that decision was ordered because it was a material error of law for the immigration judge to rely upon evidence not adduced at the hearing. If the immigration judge wished to rely upon such material he should have reconvened the hearing to give each party the opportunity to comment upon it.
That reconsideration hearing came before the first Tribunal in October 2005. It was listed before a legal panel of the Tribunal because this was seen as a suitable case to give country guidance upon the issue of risk on return to those removed involuntarily to Zimbabwe after having made an unsuccessful asylum claim in the United Kingdom. A moratorium on compulsory returns to Zimbabwe in respect of all those having no right to remain, including those who had not made an asylum claim, had been introduced in January 2002. Removals recommenced on 16 th November 2004. But, on 7 th July 2005, the Secretary of State suspended the involuntary return of failed asylum seekers once more after reports in the press of accounts of such returnees being mistreated and after judicial review proceedings had been brought in the High Court.
The first Tribunal found there to be a material error of law, for the reasons given above. This meant that the decision of the immigration judge was set aside and the Tribunal was to substitute a fresh decision to allow or dismiss the appeal.
The first Tribunal agreed that the immigration judge was plainly correct to reject the factual basis of AA's claim to be at risk upon return to Zimbabwe on account of his association with the MDC. The first Tribunal said this:
“There is no doubt in our mind that the Appellant's claim to asylum was, in all its substantive parts, fraudulent, and that the Appellant himself has been deliberately dishonest in almost all his dealings with the authorities in this country.”
That finding of fact is not challenged before us and we adopt it.
We heard oral evidence from a number of witnesses. They included Professor Ranger who gave country expert evidence on behalf of the appellant, two witnesses from the Home Office, Mr Walker who is a senior executive officer in the Country Specific Asylum Policy Team of the Asylum and Appeals Directorate, Mr Walsh, who is Acting Director of the Asylum Policy Directorate, and three witnesses who had personal experience of procedures at Harare airport. Those three witnesses had not given oral evidence before the first Tribunal.
Thus the issue in AA's appeal is whether the evidence establishes a real risk of serious ill-treatment for a person who had been found to have no objectively well founded fear of being so treated for any reason other than that he was being forced to return to Zimbabwe and would be regarded as a failed asylum seeker when he arrived at the airport. If he was able to get through the airport there needed to be an assessment of his position generally, again on the basis of being returned in these circumstances.
Before considering the evidence in detail we set out a brief overview.
As mentioned above, since January 2002 the respondent has only carried out involuntary returns of failed asylum seekers to Zimbabwe between 16 th November 2004 and 7 th July 2005. The evidence indicates that during that period 210 “principal applicants” were removed. We sought to enquire whether this means that if dependants were removed with the principal applicant the figure might increase in any significant way. This information was not available. Both Mr Henderson and Mr Kovats accepted at the hearing that we should proceed on the basis of the figure of 210 removals. It appeared probable...
To continue reading
Request your trial
-
MT (Article 1F(A) - Aiding and Abetting) Zimbabwe
...interrogation on return and would thus experience ill-treatment at the airport: see AA (Risk for involuntary returnees) Zimbabwe CG [2006] UKAIT 00061 and HS (Returning asylum seekers) Zimbabwe CG [2007] UKAIT 00094. She could not be expected to lie. By analogy with Article 9(2)(a) of 2004/......
-
Upper Tribunal (Immigration and asylum chamber), 2009-01-27, [2008] UKAIT 91 (AM and AM (Armed conflict: risk categories))
...airport: e.g. AA (Involuntary returnees to Zimbabwe) Zimbabwe CG [2005] UKIAT 000144, AA (Risk for involuntary returnees) Zimbabwe CG [2006] UKAIT 00061, HS (returned asylum seekers) Zimbabwe CG [2007] UKAIT 27. We also consider that the latter approach is consonant with GH and AG. GH was s......
-
Am & Am (Armed Conflict: Risk Categories)
...airport: e.g. AA (Involuntary returnees to Zimbabwe) Zimbabwe CG [2005] UKIAT 000144, AA (Risk for involuntary returnees) Zimbabwe CG [2006] UKAIT 00061, HS (returned asylum seekers) Zimbabwe CG [2007] UKAIT 27 We also consider that the latter approach is consonant with GH and AG. GH was sp......
-
R (SK (Zimbabwe)) v Secretary of State for the Home Department
...iv) 2 August 2006: The Asylum and Immigration Tribunal promulgated its decision in AA (Risk for Involuntary Returnees) Zimbabwe CG [2006] UKAIT 00061, revising its previous decision and holding (see at paras [244] et seq) that failed asylum seekers returned involuntarily to Zimbabwe were no......
-
Persons in Need of Protection
...UN Doc CAT/C/16/D/41/1996 (1996). 11 AA (Risk for Involuntary Returnees) Zimbabwe v Secretary of State for the Home Department , CG [2006] UKAIT 00061. Persons in Need of Protection 227 B. INFLUENCE OF INTERNATIONAL LAW As with the deinition of Convention refugee found in the IRPA , the dei......