Hs (Returning Asylum Seekers)
| Jurisdiction | England & Wales |
| Judge | Southern,Mr C. M. G. Ockelton,Storey |
| Judgment Date | 26 July 2007 |
| Neutral Citation | [2007] UKAIT 94 |
| Court | Asylum and Immigration Tribunal |
| Date | 26 July 2007 |
[2007] UKAIT 94
Asylum and Immigration Tribunal
THE IMMIGRATION ACTS
Mr C. M. G. Ockelton, Deputy President of the Asylum and Immigration Tribunal
Senior Immigration Judge Storey
Senior Immigration Judge Southern
For the Appellant: Mr M. Henderson, Counsel instructed by the Refugee Legal Centre.
For the Respondent: Mr S. Kovats, Counsel instructed by the Treasury Solicitor.
HS (returning asylum seekers) Zimbabwe CG
1. Failed asylum seekers do not, as such, face a risk of being subjected, on return to Zimbabwe, to persecution or serious ill-treatment. That will be the case whether the return is voluntary or involuntary, escorted or not.
2. The findings in respect of risk categories in SM and Others (MDC — Internal flight — risk categories) Zimbabwe CG [2005] UKIAT 00100, as adopted, affirmed and supplemented in AA (Risk for involuntary returnees) Zimbabwe CG [2006] UKAIT 00061 are adopted and reaffirmed. The Tribunal identifies one further risk category, being those seen to be active in association with human rights or civil society organisations where evidence suggests that the particular organisation has been identified by the authorities as a critic or opponent of the Zimbabwean regime.
3. The process of screening returning passengers is an intelligence led process and the CIO will generally have identified from the passenger manifest in advance, based upon such intelligence, those passengers in whom there is any possible interest. The fact of having made an asylum claim abroad is not something that in itself will give rise to adverse interest on return.
4. The Tribunal adopts and reaffirms the findings in AA in respect of the general absence of real risk associated with any monitoring of returnees that might take place after such persons have passed through the airport and returned to their home area or re-established themselves in a new area.
5. Country conditions have continued to deteriorate but are not generally such as to bring about an infringement of Convention rights for returnees or to require the grant of humanitarian protection.
In this determination the Tribunal reconsiders the country guidance given in AA(Risk for involuntary returnees) Zimbabwe CG [2006] UKAIT 00061 in the light of the judgment of the Court of Appeal in AA (Zimbabwe) v SSHD [2007] EWCA Civ 149 and the additional evidence the parties have chosen to submit.
The appellant, who was born on 23 rd June 1965, is a citizen of Zimbabwe. She arrived in the United Kingdom in May 2002 and was granted leave to enter as a visitor for six months. Just before that leave expired she applied unsuccessfully for leave to remain as a postgraduate (medical) doctor. She then applied for leave to remain as a highly skilled migrant. When that application was refused she claimed asylum. This was on the basis that she was at risk on return to Zimbabwe because she had attracted adverse attention from the authorities while working at a state hospital both by participating in a strike and by taking photographs of the injuries of a patient who had been attacked by government supporters and because of her father's claimed involvement with the MDC.
Reconsideration has been ordered of the decision of the immigration judge who, by a determination dated 31 st March 2006, allowed the appellant's appeal against the decision of the respondent made on 13 th February 2006 that the appellant should be removed from the United Kingdom after her asylum and human rights claims had been refused.
The immigration judge rejected as untrue the whole factual basis of the appellant's claim to be at risk on return to Zimbabwe and, at the first stage reconsideration hearing on 1 st March 2007, the appellant's representatives did not seek to challenge those findings. The immigration judge gave clear and cogent reasons for disbelieving the appellant's evidence. She referred, as she was bound to, to the then binding country guidance case AA (Involuntary returns to Zimbabwe) Zimbabwe [2005] UKAIT 00144 CG (“AA(1)”) and said:
“Had it not been for the country guidance case law that binds me I would have dismissed the appellant's appeals.”
At the first stage reconsideration hearing it was agreed that the immigration judge was wrong in law to allow the appeal on this basis. AA(1) was itself found by the Court of Appeal to be wrongly decided: AA and LK v SSHD [2006] EWCA Civ 401. This means that any appeal allowed solely in reliance upon it is also materially wrong in law and cannot stand. See: OM (AA(1) wrong in law) Zimbabwe CG [2006] UKAIT 00077.
That being the case the decision of the immigration judge to allow the appeal has been set aside and the Tribunal must substitute a fresh decision to allow or dismiss the appeal. But the Tribunal has directed, with the agreement of the parties at the first stage reconsideration hearing, that there is no reason at all to disturb the unchallenged findings of fact made by the immigration judge and set out between paragraphs 13 and 18 of her determination, the effect of which is summarised above. (The full text of the Tribunal's decision at the first stage of this reconsideration is set out in the first annex to this determination.) This means that the appellant would be returned to Zimbabwe as a person with no profile such as to attract attention other than that, having made clear that she is unwilling to return voluntarily, she would be identifiable upon arrival at Harare airport as someone who had been forcibly removed from the United Kingdom. Although such deportees will not be identified as failed asylum seekers, the respondent accepts that they should not be expected to lie about having made a claim for asylum in the United Kingdom if asked about this on return.
At the commencement of the hearing before us Mr Henderson, who appeared for the appellant, sought to widen the scope of the reconsideration. This was on the basis that the appellant's brother had appealed successfully against a decision that he should be removed from the United Kingdom as an illegal entrant after his asylum claim had been refused. His claim was based in part upon the assertion that his father had been an MDC activist well known in his area for holding MDC meetings at the family farm, something that the immigration judge who allowed this appellant's appeal found not to be true. As that much had been accepted by the adjudicator who allowed the brother's appeal, Mr Henderson submitted that the appellant should be allowed to reopen her claim to be at risk on return on account of the family profile of support for the MDC.
Mr Kovats, for the respondent, resisted this application. It was, he submitted, far too late to widen the scope of the reconsideration as directed by the Tribunal with the agreement of the parties at the earlier hearing. In any event, the fact that the appellant's brother had persuaded an adjudicator that his father had suffered persecution on account of his activities on behalf of the MDC did not establish that the immigration judge who dismissed the appellant's appeal was wrong to reject a similar claim made by the appellant.
The Asylum and Immigration Tribunal (Procedure) Rules 2005, as amended, sets out clearly the procedure to be adopted by a party seeking to introduce fresh evidence. Paragraph 32 of those Rules deals with the evidence to be considered upon reconsideration of an appeal:
Evidence on reconsideration of appeal
32. – (1) The Tribunal may consider as evidence any note or record made by the Tribunal of any previous hearing at which the appeal was considered.
(2) If a party wishes to ask the Tribunal to consider evidence which was not submitted on any previous occasion when the appeal was considered, he must file with the Tribunal and serve on the other party written notice to that effect, which must –
(a) indicate the nature of the evidence; and
(b) explain why it was not submitted on any previous occasion.
…
Regard is to be had also to what is said in the Asylum and Immigration Tribunal Practice Directions:
14.1 Subject to paragraph 14.12, where an appeal has been ordered under section 103A to be reconsidered, then, unless and to the extent that they are directed otherwise, the parties to the appeal should assume that the issues to be considered at the hearing fixed for the reconsideration will be whether the original Tribunal made a material error of law (see rule 31(2)) and, if so, whether the appeal should be allowed or dismissed, by reference to the original Tribunal's findings of fact and any new documentary evidence admitted under rule 32 which it is reasonably practicable to adduce for consideration at that hearing.
…
14A.3 A party who wishes the Tribunal on reconsideration to consider any evidence that was not before the original Tribunal must indicate in the notice under rule 32(2) whether the evidence is sought to be adduced:–
(a) in connection with the issue of whether the original Tribunal made a material error of law; or
(b) in connection with the substitution of a fresh decision to allow or dismiss the appeal under rule 31(3), in the event of the original Tribunal being found to have made a material error of law.
This was considered by the Court of Appeal in DH (Serbia) and others v SSHD [2006] EWCA Civ 1747:
22. As far as what has been called the second stage of a reconsideration is concerned, the fact that it is, as I have said, conceptually a reconsideration by the same body which made the original decision, carries with it a number of consequences. The most important is that any body asked to reconsider a decision on the grounds of an identified error of law will approach its reconsideration on the basis...
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