Cm (zimbabwe) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Beatson,Lord Justice Laws |
| Judgment Date | 10 May 2013 |
| Neutral Citation | [2013] EWCA Civ 660 |
| Court | Court of Appeal (Civil Division) |
| Date | 10 May 2013 |
| Docket Number | Case No: C5/2013/0836 |
[2013] EWCA Civ 660
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)
[Appeal No: AA/11543/2009]
Royal Courts of Justice
Strand
London WC2A 2LL
Lord Justice Laws
and
Lord Justice Beatson
Case No: C5/2013/0836
Mr Mark Henderson, Mr Phil Haywood and Ms Catherine Meredith (instructed by Turpin & Miller LLP) appeared on behalf of the Applicant
Mr Colin Thomann (instructed by the Treasury Solicitor) appeared on behalf of the Respondent
The changing state of affairs in Zimbabwe in recent years has meant that the Upper Tribunal's IAC Chamber and its predecessor tribunal, the AIT, has had to issue Country Guidance on a number of occasions. It has said that establishing stable Country Guidance has been a particularly challenging task.In this application, CM applies for permission to appeal against the most recent of these decisions by the Upper Tribunal on 31January2013. In it the Upper Tribunal reconsidered and (with one amendment) confirmed the Country Guidance relating to Zimbabwe inJanuary2011 given in EM and Others (Returnees) Zimbabwe CG [2011] UKUT 98 (IAC).
EM and Others decided that the guidance in RN (Returnees) Zimbabwe CG [2008] UKAIT 0083, which held that the risk on return included all those unable to demonstrate support for the regime of Zanu-PF, was no longer applicable because there was significantly less politically motivated violence in Zimbabwe.The decision, promulgated thisJanuary, also set out some information regarding Zimbabwe as atOctober201It stated that, while it considered that the information might be of assistance for decision-makers and judges, it was not formal Country Guidance because it was based on evidence which neither party claimed to be comprehensive.
Before turning to the grounds relied upon by Mr Henderson, I give the briefest summaries of the guidance in EM and Others and of the procedural history of that and this case, which is not entirely straightforward. The fresh guidance in EMandothers was that, in general, the return of a unsuccessful applicant for refugee status from the UK with no significant MDC profile did not face a real risk of having to demonstrate loyalty to Zanu-PF. There was, however, a difference between urban areas and rural areas. In all but two rural areas there was such a risk. As to Harare, returnees would in general face no significant difficulties if going to a low or medium density area. In a high density area, although the position was more difficult, absent a significant MDC profile or participation in political activities likely to attract adverse attention by Zanu-PF, returnees in general would not face significant problems.
As to the procedural history, CM and JG, one of the other appellants whose appeals in EM and Others were dismissed, were granted permission to appeal to this court. One of the grounds of appeal was whether the Secretary of State had complied with her disclosure obligations. Directions were given by this court for further disclosure of material dating fromJanuary2010 toMarch2011. There was to be no redaction on PII grounds unless PII certificates were served.
On 13June2012, before disclosure of all the material or consideration of the SecretaryofState's PII claim, the parties put a consent order before the court proposing that the appeals be allowed and remitted to the Upper Tribunal for redetermination. They did so because of data relating to the assessment of risk in Zimbabwe, which had been available inJanuary2011, which had not been disclosed to the Tribunal or the appellants. It was thus not taken into account by the Tribunal in itsMarch2011 decision in EM and Others. The Secretary of State accepted that her failure to provide some of the material meant that there was a procedural irregularity amounting to a material error of law affecting the Upper Tribunal's determination.
At the time of the consent order the parties (in part in the reasons given in support of the matter put before the court) identified a number of questions which needed to be considered at the remitted hearing. The first concerned the impact on the Country Guidance of the material as regards the position at that time which had not been before the Tribunal when it made its earlier decision. The second concerned how to proceed in respect of the claim to public interest immunity by the Secretary of State. The third was whether there had been a durable change of circumstances between the factual assessment in RN and that in EM. The fourth was whether the Tribunal had erred in giving weight to information supplied to a fact-finding mission by the UKBA and the Foreign Office by organisations in Zimbabwe which did not consent to their identity being supplied to the appellants (the anonymous evidence issue). The fifth was the impact of those three matters and any fresh evidence adduced in the individual appeals. JG disappeared from the scene because she was granted leave to remain in the UK.
Before the matter was substantively reconsidered by the Upper Tribunal, it made a number of interlocutory decisions. There had been a directions hearing in July. The decisions were made on 14September2012 in the light of the oral submissions made at the July hearing and written submissions. The decisions concerned the timetable, whether the re-hearing was to be treated as a new Country Guidance determination, how to handle disclosure and the PII claim, and whether further disclosure should be ordered. The Tribunal decided that for a number of reasons the appeal should be re-heard byOctober2012. The reasons included that over three years had passed since the decision in EM and Others; the need to end what was a prolonged period of uncertainty for a large number of cases which were likely to be affected by the outcome; the risk that any conclusions as to general risk would have to be revisited by mid-2013 in view of the potential for the next round of elections which it was anticipated would take place at that time; and the potential of those elections to lead to increased risk to non-Zanu-PF supporters in the way that they had in 2008.
As to the PII claim, in view of the nature of the material, which was mainly background material which did not relate to CM directly, because it would have been open to the Tribunal to conduct the PII process and because of the volume of the material and the need to get the case heard expeditiously, the Tribunal decided to invite the AttorneyGeneral to appoint an advocate to assist it with the resolution of the matter.
In relation to disclosure, the Tribunal stated that the starting point differed from that in private law civil litigation. In the light of the authorities, Abdi and Gawe [1996] 1WLR 298, Kerrouche (No 1) [1997] IAR 610, Cindo [2002] EWHC 246 (Admin) and MS (Risk on Return) Kosovo [2003] UKAIT 00031, there was no general duty of disclosure on the Secretary of State in asylum appeals generally, or in Country Guidance cases in particular.What the Secretary of State was obliged to do was not knowingly to mislead the court or Tribunal by omission of material that was known or ought to have been known to her. Secondly, the Tribunal decided that, as the issues remitted to it were essentially historic ones, it did not need disclosure beyondMarch2011, although it did not rule out that further evaluation might lead to further questions, and in the event there was further evidence provided.
In its substantive decision the Tribunal concluded that, save in one respect, the materials disclosed in response to the orders of the Court of Appeal and directions it made, and the fresh materials adduced by the parties, did not require the Country Guidance in EMandOthers (Zimbabwe) to be amended as regards the position at the end ofJanuary2011.The decision was not vitiated by the material as to the effect of risk during the election period anticipated in 2013 or because of the use of evidence from the anonymous sources in the UKBA/FCO Fact Finding Report. The decision, however, although relating to the position in guidance terms inJanuary2011, did refer to evidence about 2012 (see paragraphs212 and 213 of the decision). The guidance as to the position inJanuary2011 did, however, require amendment to reflect the decision of the Supreme Court in RT (Zimbabwe) [2012] UKSC 38. The modification was to include those who would be reasonably likely to engage in such activities, but for a fear of thereby coming to the adverse attention of Zanu-PF.
I turn to the matters regarding Zimbabwe as atOctober2012 and the four items of information the Tribunal considered might be of assistance to decision-makers and judges. It stated this was not Country Guidance because it was based on evidence which neither party claimed to be comprehensive. The first item of information was that the picture presented by the fresh evidence as to the general position of politically motivated violence in Zimbabwe as atOctober2012 did not differ in any material respect from the Country Guidance in EM and Others. Secondly, elections were due to be held in 2013, but it was uncertain when. Given the uncertainty of that and the nature of the evidence, it was not possible for the Tribunal to conclude that there was then a real risk. Thirdly, in the light of evidence regarding the activities of Chipangano, fact-finders might need to pay particular regard to whether a person who is reasonably likely to go to Mbare or a neighbouring high density area of Harare would come to the adverse attention of...
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