AA v Secretary of State for the Home Department;
| Jurisdiction | England & Wales |
| Judge | Lord Justice Brooke |
| Judgment Date | 12 April 2006 |
| Neutral Citation | [2006] EWCA Civ 401 |
| Date | 12 April 2006 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C5/2005/2901 AND C5/2006/0077 |
IN THE SUPREME COURT OF JUDICAT
COURT OF APPEAL (CIVIL DIVISI
ON APPEAL FROM THE ASYLUM AND IMMIGRATION TRIBU
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Brooke
Vice-President, Court of Appeal (Civil Division)
Lord Justice Laws and
Sir Christopher Staughton
Case No: C5/2005/2901 AND C5/2006/0077
Ian Burnett QC and Steven Kovats (instructed by the Treasury Solicitor) for the Appellant
Andrew Nicol QC and Mark Henderson (instructed by the Refugee Legal Centre) for the Respondents AA and LK
IN
Part Paragraph
Introduction ….. ….. ….. ….. ….. ….. ….. ….. ….. 1
The issues and the facts in the case of AA. ….. ….. ….. ….. 2
The country guidance case of SM ….. ….. ….. ….. ….. ….. 6
New evidence following SM: why AA came to be heard ….. ….. 12
The evidential material in AA and the Home Office's stance ….. 15
The evidence about the procedures at Harare Airport and the
numbers of passengers arriving at that airport from the UK
in 2004–5 ….. ….. ….. ….. ….. ….. ….. ….. ….. ….. 20
The evidence about the CIO ….. ….. ….. ….. ….. ….. ….. 30
The evidence about the treatment of identifiable
involuntary returnees ….. ….. ….. ….. ….. ….. ….. ….. 33
The evidence about the political situation in Zimbabwe in 2005 ….. 41
Prof Ranger's evidence about the risk to involuntary deportees ….. 47
The evidence of the Zimbabwe-based NGOs ….. ….. ….. ….. 53
AA: The AIT's conclusions ….. ….. ….. ….. ….. ….. ….. 65
The first argument on the appeal: The AIT misunderstood
some of the evidence ….. ….. ….. ….. ….. ….. ….. ….. 70
The second argument on the appeal: The AIT misapplied a
concession ….. ….. ….. ….. ….. ….. ….. ….. ….. 73
The third argument on the appeal: AA is not a refugee ….. ….. 79
The third argument: a Preliminary Objection ….. ….. ….. ….. 80
The third argument: substance ….. ….. ….. ….. ….. ….. 86
The third argument: the Danian case ….. ….. ….. ….. ….. 96
The third argument: safe voluntary return on the facts? ….. ….. 101
The appeal in LK ….. ….. ….. ….. ….. ….. ….. ….. 109
Lord Justice BrookeThis is the judgment of the court, to which Laws LJ has made a significant contribution.
Introduction
These two appeals, which were heard together, are brought by the Secretary of State against the determinations of differently composed panels of the Asylum and Immigration Tribunal ("AIT") on 14th October and 17th November 2005. The main issues to be decided arise in the case of AA. So far as LK is concerned, the Secretary of State does not challenge the AIT's decision to refuse reconsideration on the grounds that she has a well-founded fear of persecution for a Geneva Convention reason and on human rights grounds, but he does challenge their decision that they would have dismissed his application for reconsideration in any event on the grounds set out in their determination in AA.
The issues and the facts in the case of AA
The case of AA was listed for hearing before a full panel of the AIT because it afforded a suitable vehicle for determining whether or not the Secretary of State ought to refrain from sending any failed asylum-seekers back to Zimbabwe both on Refugee Convention and on human rights grounds by reason of risks arising from the ill-treatment they would be likely to receive on their return because they had sought and been refused asylum by this country. From January 2002 onwards the Secretary of State had imposed a moratorium on compulsory removals to Zimbabwe (whether of failed asylum-seekers or of others who had no legal entitlement to remain in this country) , but he ended this moratorium on 16th November 2004, and this case turns on an analysis of the treatment accorded in Zimbabwe to failed asylum-seekers who were removed involuntarily between 16th November 2004 and 7th July 2005 when compulsory removals were again suspended, pending the resolution of the litigation to which we refer below.
This was the only live issue on AA's appeal. He is now 30 years old, and he arrived in this country via South Africa and France on 6th November 2002. He was granted temporary admission, but nothing further was heard of him until the police arrested him two and half years later. He then applied for asylum for the first time. His application was refused a week later. On 5th July 2005 an immigration judge dismissed his appeal in so far as it was based on his story about his experiences before he left Zimbabwe, but he allowed it, on both Geneva Convention and human rights grounds, because of the treatment he would be likely to receive if he was sent back. The immigration judge was influenced in this regard by a very recent report on conditions in Zimbabwe on which neither party had had the opportunity to comment at the hearing before him.
A reconsideration of his decision was directed, and at the new hearing a legal panel of the AIT, chaired by its Deputy President, held that the immigration judge had committed an error of law in relying on material evidence which was not adduced at the hearing of the appeal. The appellant did not give evidence before the panel, and it was not suggested that the immigration judge's rejection of his story could be faulted on the grounds of error of law. The panel said:
"[T]here 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."
In his screening interview the appellant had said that he had no shelter in Zimbabwe, and he had no way of getting money and nowhere to sleep. He feared that one of his parents might get arrested when he went back because "they say" that the Zimbabweans in the United Kingdom support the opposition. He averred that his life was in danger and that he would starve if he went there: he could even be taken at the airport. He did not say in terms that he would prefer to go back to Zimbabwe voluntarily rather than under compulsion if this would reduce any risk of ill-treatment at the airport.
The country guidancecase of SM
On 11th May 2005 the Immigration Appeal Tribunal ("IAT") had considered issues relating to risks on return to Zimbabwe in the country guideline case of SM and Others (MDC – internal flight – risk categories) Zimbabwe CG [2005] UKIAT 00100. The hearing in that case had taken place on 15th February 2005, although the tribunal also admitted some later evidence in the form of a March 2005 news report. That tribunal was impressed by the evidence of Professor Terence Ranger, whose expertise arose from more than 45 years' familiarity with Zimbabwe. He had known Robert Mugabe and other senior leaders of ZANU-PF throughout that period. They accepted from his evidence and from the news reports in Zimbabwe that it seemed inevitable that those deported to Zimbabwe from this country would be subject to interrogation on return. Their conclusions were expressed in these terms:
"… We … approach with caution the reports that a number of recent returnees have never re-appeared once they were taken from the plane by CIO agents and that others have disappeared. No names or details have been provided and if, as Professor Ranger says, the returns have been carefully monitored, we would have thought such details would be available.
Nonetheless 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. We are satisfied that those who are suspected of being politically active with the MDC would be at real risk. We agree with Professor Ranger that if the authorities have any reason to believe that someone is politically active the interrogation will be followed up. There is a reasonable degree of likelihood that this will include treatment sufficiently serious to amount to persecution."
Professor Ranger told that tribunal that since forced returns to Zimbabwe had started again it was hard to collect confirmed data on what had happened to returnees. There were abundant rumours. It seemed to be clear that deportees were being held at the airport for prolonged interrogation, and that in some cases the families of detainees were being charged considerable sums of money to obtain their release. There was evidence of Central Intelligence Organisation ("CIO") interrogation of returnees prior to the suspension of returns in 2002, and since then the risks of interrogation at Harare Airport had increased. More recently, since the announcement that the UK had resumed deportations, there had been speculation in the state press that the British government would use these deportations to infiltrate a third force into Zimbabwe to commit acts of violence which would be attributed to ZANU-PF so as to discredit the regime.
Professor Ranger also told that tribunal that there had been scare stories that the British government was training hundreds of Zimbabwean recruits to the army, holding them in readiness to use in an invasion. There was a press report on 17th December 2004 to the effect...
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