AA (Zimbabwe) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice May |
| Judgment Date | 06 March 2007 |
| Neutral Citation | [2007] EWCA Civ 149 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C5/2006/2015 |
| Date | 06 March 2007 |
[2007] EWCA Civ 149
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ASYLUM AND IMMIGRATION TRIBUNAL
AA045072005
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice May
Lord Justice Sedley and
Sir Paul Kennedy
Case No: C5/2006/2015
Andrew Nicol QC and Mark Henderson (instructed by Refugee Legal Centre) for the Appellant
Steven Kovats (instructed by Treasury Solicitor) for the Respondent
Hearing dates: 15 & 16 January 2007
Introduction
This is the judgment of the Court.
The Secretary of State acknowledges that some people returning from the United Kingdom to Zimbabwe may face a real risk of inhuman or degrading treatment or punishment. Anyone who does face that risk should not be required to return involuntarily, since that would constitute a violation by the United Kingdom of his fundamental rights under Article 3 of the European Convention on Human Rights.
In January 2002, after a newspaper report of ill-treatment of an asylum seeker returning after he had been expelled from the United Kingdom, the Secretary of State suspended removals to Zimbabwe. There were no such expulsions until November 2004 when removals were resumed.
On 15 February 2005, the Immigration Appeal Tribunal heard and subsequently determined three appeals which raised a number of common issues relating to the then current situation in Zimbabwe. The IAT's determination, notified on 11 May 2005, is SM and Others (MDC – Internal Flight – Risk Categories) Zimbabwe CG [2005] UKIAT 00100. The Tribunal concluded that all failed asylum seekers forcibly returned to Zimbabwe would be regarded with contempt, suspicion and hostility in the belief that at least some of them would be British-trained agents or saboteurs, so all would be subject to close scrutiny. If the Zimbabwe authorities then discovered any reason to believe the returnee to be politically active, the initial scrutiny would be followed up. At that stage, “there is a reasonable degree of likelihood that this [follow up] will include treatment sufficiently serious to amount to persecution” (paragraph 42). Those potentially at risk included people whose political activity was identified and described in paragraph 43 of the determination. The existence of records alone did not materially add to the assessment of the risk of persecution in an individual case, which depended on the individual's profile and background. In reaching these and other conclusions, the Tribunal considered and accepted the evidence of Professor Ranger, whose expertise arises from more than 45 years' familiarity with Zimbabwe. MDC (in the title to this decision) is an acronym for the Movement for Democratic Change, an opposition political party in Zimbabwe formed in 1999.
On 14 July 2005, the Secretary of State again suspended removals to Zimbabwe pending decisions on judicial review applications on behalf of failed asylum seekers. There was one further involuntary removal only to Zimbabwe in August 2006, but the Secretary of State now wants to resume removals in some cases.
This appeal comes before this court as a test case in which the Secretary of State wishes to obtain and confirm a finding on the facts that those who are returned involuntarily to Zimbabwe from the United Kingdom do not by that fact alone face a real risk of torture or of inhuman or degrading treatment. For reasons which we shall indicate, we are sceptical whether a concluded determination in this case is capable of being applied uncritically to other cases in 2007.
The proceedings
The background facts concerning AA, the present Appellant, may be found in paragraphs 5 to 10 of the determination of the Asylum and Immigration Tribunal of July 2006 [2006] UKAIT 00061. The Chairman of this Tribunal was the President of the AIT, Hodge J. In brief summary, AA is a citizen of Zimbabwe, born on 8 April 1975. He arrived in the United Kingdom on 6 November 2002. He was granted temporary admission, but absconded. Upon his detention two-and-a-half years later, he claimed asylum. The Secretary of State refused his claim on 27 July 2005. He appealed to an immigration judge, who rejected as untrue his claim to be at risk on return on account of anything he had done in Zimbabwe. But the immigration judge allowed the appeal on human rights grounds, holding that the Appellant would face real risk of persecutory ill-treatment by the authorities in Zimbabwe simply because he would be returning to Zimbabwe as a person who had unsuccessfully claimed asylum in the United Kingdom.
Reconsideration of this decision was ordered, and a first Tribunal reconsidered the matter in October 2005. This first Tribunal found that there had been a material error of law, because the immigration judge had relied on evidence which he had found on the internet after the hearing. The first Tribunal made a fresh decision, which concluded, in agreement with the immigration judge, that the Appellant's asylum claim was, in all its substantive parts, fraudulent. AA is therefore a failed asylum seeker, who claimed to have been involved in some low-level political activity in Zimbabwe in opposition to the ruling party, but whose claim has been held to have been fraudulent. The case has proceeded to this court on this appeal on the basis that AA has had no material political involvement in or concerning Zimbabwe and that his only relevant attribute, if he returns to Zimbabwe, would be that his claim for asylum had failed. His personal case is, of course, important. But the wider significance of it is said to be that he may be taken as typical of Zimbabweans with no material political background whose claim for asylum failed because the facts on which it was based were found to be untrue.
Notwithstanding the finding to which we have referred, on 18 October 2005 the first Tribunal upheld AA's claim on Refugee Convention and human rights grounds. On 12 April 2006, this court allowed the Secretary of State's appeal against that decision and remitted the case for further reconsideration by the AIT. The matter now before this court is a further appeal, this time by AA, from the decision of the second Tribunal of 31 July 2006 dismissing AA's appeal on both Refugee Convention and human rights grounds.
Buxton LJ gave AA limited permission to appeal, suggesting that those advising him might consider reformulating somewhat grounds of appeal which Buxton LJ considered to be reasonably arguable. Mr Andrew Nicol QC and Mr Mark Henderson, counsel for AA, have helpfully done this and there are now five reformulated grounds of appeal. Of these, in substance Buxton LJ gave permission for ground 1. AA renews his application for permission on the other four grounds. The substance of ground 1 is that the Tribunal failed to consider significant parts of the oral evidence of two former members of the Zimbabwean Military Intelligence, referred to anonymously as witnesses 5 and 6 (W5 and W6); and failed properly to address evidence about attitudes and practices of the Central Intelligence Organisation (CIO).
As Buxton LJ ruled, the extensive written submissions on behalf of the appellant contain manifold criticisms of the Tribunal's handling of the facts. An appeal to this court is only on a point of law. We note in this context Mr Kovats' overarching submission that, when the very careful decision is read as a whole, the appeal is no more than a disagreement with the Tribunal's findings of fact. The five reformulated grounds of appeal sensibly reduce the ambit of AA's challenge. As will appear, we regard the challenge to the Tribunal's assessment of the evidence of W5 and W6 as pivotal.
Outline of the second Tribunal's determination
The issue which the second Tribunal had to address was whether the evidence established 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 who would be regarded as a failed asylum seeker when he arrived at the airport.
The Tribunal heard oral evidence from a number of witnesses, including Professor Ranger and two witnesses from the Home Office, Mr Walker and Mr Walsh. The Tribunal gave an overview of the evidence (paragraphs 14 to 22). In the period between 16 November 2004 and 7 July 2005, there had been 210 people removed from the United Kingdom to Zimbabwe. It was possible to glean evidence or information about what had happened to some of these, but these were a relatively small proportion. Direct particular evidence relevant to what might happen to a failed asylum seeker returned to Zimbabwe in or after July 2006 was therefore not great. There was evidence from and about Non-Government Organisations (NGO's) in Zimbabwe, some of which those representing AA said was of no value.
The Tribunal considered the test which they should apply. They held in paragraph 31 that:
“The issue is whether the evidence establishes a real risk. The Appellant does not need to show a certainty or a probability that all failed asylum seekers returned involuntarily will face serious ill-treatment upon return. He needs to show only that there is a consistent pattern of such mistreatment such that anyone returning in those circumstances faces a real risk of coming to harm even though not everyone does. So is there evidence pointing to a substantial number of cases in the context of general evidence showing that involuntarily returned failed...
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