CM (Zimbabwe) v The Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Laws,Lord Justice Kitchin,Lord Justice Underhill |
| Judgment Date | 30 July 2013 |
| Neutral Citation | [2013] EWCA Civ 1303 |
| Date | 30 July 2013 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C5/2013/0836 |
[2013] EWCA Civ 1303
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
Lord Justice Kitchin
and
Lord Justice Underhill
Case No: C5/2013/0836
Mr Mark Henderson, Mr Phil Haywood and Miss Catherine Meredith (instructed by Turpin and Miller LLP) appeared on behalf of the Appellant
Mr Robin Tam QC and Mr Colin Thomann (instructed by the Treasury Solicitor) appeared on behalf of the Respondent
This is an appeal with permission granted by myself and Beatson LJ on 10 May 2013 against a decision of the Upper Tribunal of 31 March 2013 in which the tribunal reconsidered and, subject to one amendment, confirmed the country guidance relating to Zimbabwe given in EM & Others (Returnees) (Zimbabwe) CG [2011] UKUT 98. The decision in that case was promulgated in March 2011 and replaced earlier country guidance given in RN (Returnees) (Zimbabwe) CG [2008] UKAIT 00083.
The new guidance was set out in 11 subparagraphs at paragraph 267 of the determination in EM. It was very crisply and briefly summarised by Beatson LJ, granting permission to appeal in the present case, at paragraph 3 of his judgment as follows:
"The fresh guidance in EM and others was that, in general, the return of an 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."
CM, the appellant, was one of the appellants in EM. He and one of the other appellants, JG, sought permission to appeal to this court against the EM country guidance decision. There followed a somewhat tortuous procedural course. As the Upper Tribunal observed at paragraph 7 of the determination now under appeal, the Court of Appeal was concerned as to what might be the impact of certain material relating to the assessment of risk in Zimbabwe, which apparently had been available in January 2011 but had not been disclosed to the tribunal or the appellants. This material had come to light in another case. Permission to appeal to this court against the EM country guidance decision was at length granted. This court directed further disclosure by the appropriate government department of data in government hands dating from 1 January 2010 to 10 March 2011, but the court was informed that the response would be the service of public interest immunity certificates on behalf of the Foreign Secretary.
In the event, in June 2012 the appeal was allowed by consent. The Secretary of State accepted that certainly some of the disclosures more recently provided should have been given in the course of the EM case before the tribunal. The appellants' cases were remitted to the Upper Tribunal for redetermination in the light of a number of issues of law set out in the schedule to this court's order. The appellant, JG, disappeared from the scene because she obtained leave to remain in the United Kingdom.
Given the three specific grounds on which permission to appeal was granted on 10 May 2013, it is not necessary to set out the whole contents of the schedule to this court's earlier order, though we should note: (a) the principal issue was whether the earlier decision in EM was "fraud by reason of non-disclosure"; (b) consideration was to be given to the Secretary of State's outstanding claim to withhold material on public interest immunity grounds; and (c) there was a question as what weight should be accorded to anonymous evidence in light of the Strasbourg decision in Sufi and Elmi v United Kingdom [2011] ECHR 1045, which postdated the promulgation of the EM country guidance determination.
There were two directions hearings in the Upper Tribunal after remittal by this court. They took place on 10 July and 14 September 2012. The substantive hearing took place between 2 and 5 October 2012. It will make for clarity if I explain at once the three grounds on which the appellant has leave to appeal against the Upper Tribunal's subsequent decision. They reflect the issues I have summarised, which the Upper Tribunal had to consider on the case being remitted to them. There were, in fact, eight grounds of appeal advanced. We granted permission on the first three, articulated by Beatson LJ in his judgment of 10 May 2013 at paragraph 12 as follows:
"First, it is submitted that the Tribunal erred in not finding that the Secretary of State was under a general duty to provide disclosure in an asylum and Article 3 appeal. Secondly, in the light of the decision of the Strasbourg Court in Sufi and Elmi v United Kingdom [2011] ECHR 1045, it was submitted that the Tribunal erred in relying on wholly anonymous evidence in the report of the fact-finding commission. Thirdly, it was contended that the Tribunal erred in appointing a public interest immunity advocate instead of a specially appointed advocate in respect of the disclosure ordered by the Court of Appeal."
It is convenient to address Ground 3 first, the appointment of a PII advocate. In written directions given on 23 July 2012 the Upper Tribunal indicated that it was minded to appoint a "specially appointed advocate" to enable them to complete the task of determining the outstanding issues relating to disclosure and PII. At length, after initial observations by the Attorney General to which I may say Mr Henderson took some objection today, submissions were received from the parties and on 3 August 2012 the Upper Tribunal resolved to appoint a PII counsel rather than a specially appointed advocate. Consideration had been given to the practice note at AHK v SSHD [2009] EWCA Civ 287. In a letter to the solicitors involved of 3 August 2012 the tribunal said this:
"3. The Tribunal seeks a procedure that will enable it to complete the task assigned by the Court of Appeal thoroughly, fairly and promptly. The need for promptness arises because of the general importance of the issues raised, which affect other existing appeals, as well as decision-making by the respondent on Zimbabwean cases. Over 700 cases are currently before the First-tier Tribunal or the Upper Tribunal.
4. Given this, together with (a) the substantial representations and responses of the parties in the proceedings before the Court of Appeal, as well as subsequently; (b) the large number of documents that fall to be considered; (c) the other judicial duties of the judges who will be dealing with the appeals; and (d) the start of the long vacation, the Tribunal considers that the appropriate course is to request the respondent to arrange for the Attorney General to appoint PII counsel, who would work under the Tribunal's instructions.
5. In the ordinary course of events, the PII exercise would be wholly undertaken by the Upper Tribunal, in the normal way. But the factors described in paragraphs 3 and 4 above mean there is substantial risks that, without PII counsel's assistance, the task cannot be performed by the tribunal in August and early September, thereby putting the timetable in jeopardy.
6. We understand that the PII counsel would represent the interests of justice, rather than a party; but nevertheless in the light of the appellants' submissions today, which have been extensive. The PII counsel would be a resource for the Tribunal and would be briefed by its judiciary, not the appellants, as to the issues with which the tribunal would like assistance to help it discharge its duties."
In its final determination now under appeal, the Upper Tribunal said this:
"31. The procedure that we were able to adopt with the assistance of the Attorney General addressed all potential obstacles to our satisfaction. Ms Kate Olley was appointed a PII advocate by the Attorney. She has acted at our direction and has been able to review all the material timeously; make her own independent assessment of the three questions we posed for her to consider [they are set out at paragraph 29]; discuss her conclusions with members of the panel; engage in discussion with the counsel for the Secretary of State about issues that remained unresolved including the extent to which any gist of the material to which PII did apply could be provided to the appellant."
We should add that we understand from Mr Tam QC, who has represented the Secretary of State before us today, that Ms Olley returned to the tribunal after those discussions with counsel for the Secretary of State referred to in paragraph 31. Indeed, Mr Tam was that counsel.
The appellant makes it clear (paragraph 92 of Mr Henderson's skeleton) that it is not his case that he would be entitled to a specially appointed advocate in any PII process. This court's expression of concern at paragraph 38(ii) of AHK as to the appropriateness of a court proceeding "to test and probe the material with the benefit of counsel for only one side" is well understood, though as we understand it it arose there in the context of a closed procedure. The PII advocate appointed by the Attorney General at the request of the tribunal acted in...
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