Em (Zimbabwe) v Secretary of State for the Home Department

After refusal by the Upper Tribunal the applicant seeks permission to appeal to the Court of Appeal and, if successful, that the appeal be remitted to the First-tier Tribunal for further factual findings. This is not a second appeal case. It is not against a determination of the Upper Tribunal on appeal from the First-tier Tribunal but an appeal in the Upper Tribunal against a determination of the Asylum and Immigration Tribunal.

A chronology repays brief consideration. The applicant was born in Zimbabwe on 8 March 1960. She had entry clearance into the United Kingdom as a visitor on 4 May 2007. She arrived here on 12 May 2007 and her leave to enter expired on 3 November 2007. On 3 November 2008 she was diagnosed as HIV positive.RN (Returnees) (Zimbabwe) CG [2008] UKAIT 00083 was promulgated on 19 November 2008. She claimed asylum on 28 January 2009. That claim had been refused by 24 April 2009, and the AIT dismissed her appeal on 17 August 2009. Reconsideration was sought on 25 August 2009 and an error of law was revealed in a reconsideration by 11 December 2009. The appeal was stayed pending country guidance.RS & Ors (Zimbabwe—AIDS) Zimbabwe CG[2010] UKUT 363 was promulgated in October 2010, EM & Ors (Returnees) Zimbabwe CG [2011] UKUT 00098 promulgated on 14 March 2011.

The applicant's rehearing was on 12 July 2011 and the determination of the Upper Tribunal promulgated on 4 August 2011. Permission to appeal was refused by the Upper Tribunal and application to this court was lodged on 5 December 2011.

The Immigration Judge accepted that in general EM was a credible witness. Her evidence was that she paid contributions to the political opposition in Zimbabwe, the Movement for Democratic Change ("the MDC"). In determining that she would not be at risk of persecution for political reasons on her return the Immigration Judge found no reason to believe that EM could not, if necessary, show that she did not support the MDC. That is criticised as an error of law, in reliance on RT (Zimbabwe) & Ors[2010] EWCA Civ 1285. Those forced to lie about their political beliefs would still make a case for refugee status if their dissembling were so as to avoid the risk of persecution.

The Upper Tribunal judge found no exceptional circumstances going to the ruling in the appeal prior to RT (Zimbabwe). That too is criticised as an error. The court states what the law had always been, a decision-maker should not be insulated merely because the decision's error predated the correct statement of the law by a binding authority. EM based her claim on the Refugee Convention due to the risk for an MDC supporter of persecution by Zanu-PF and upon breach of Article 8, relying on restricted treatment for HIV. In this application she advances the first ground alone and the second need not trouble us.

EM came to the United Kingdom from a rural area to help care for her grandson. She did not return, so her evidence went, because she had heard that Zanu-PF supporters were looking for and asking about her, aware she supported the MDC. Her claim for asylum cited the fear of persecution. At the rehearing of the appeal Deputy Upper Tribunal Judge Frances found that the post-appeal promulgation of RT (Zimbabwe) did not constitute exceptional circumstances significantly altering the position on risk on return from the country guidance applicable at the time, that is, RN.

The law

Country guidance on Zimbabwe RN[2008] UKAIT 00083 (19 November 2008) establishes that targeting individuals who could not demonstrate Zanu-PF loyalty is predominant. Returning as a failed asylum seeker decreases the possibility of establishing Zanu-PF sympathies. Residence in the United Kingdom for a significant period enhances the risk. In EM (Zimbabwe) the Upper Tribunal found that in general the return from the United Kingdom of a failed asylum seeker having no significant MDC profile would not confront her with a real risk of having to demonstrate loyalty to the regime. There might be risks to someone...