KM (Zimbabwe) v Secretary of State for the Home Department (No 2)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Pill,Lord Justice Rix,Lord Justice Lloyd |
| Judgment Date | 17 March 2011 |
| Neutral Citation | [2011] EWCA Civ 275 |
| Docket Number | Case No: C5/2010/0175 |
| Court | Court of Appeal (Civil Division) |
| Date | 17 March 2011 |
[2011] EWCA Civ 275
IN THE COURT OF APPEAL (CIVIL DIVISION)
On appeal from the Upper Tribunal
(Immigration and Asylum Chamber)
Before: Lord Justice Pill
Lord Justice Rix
and
Lord Justice Lloyd
Case No: C5/2010/0175
Mr Ian Dove QC and Miss Nazmun Ismail (instructed by Blakemores) for the Appellant
Ms Kate Grange (instructed by the Treasury Solicitor) for the Respondent
Hearing date: 15 February 2011
Lord Justice Pill:
This is an appeal against a decision of the Asylum & Immigration Tribunal ("the Tribunal") of 22 October 2009 whereby it dismissed an appeal against the decision of the Secretary of State for the Home Department ("the Secretary of State") on 13 February 2009 to remove KM ("the appellant") from the United Kingdom following the refusal of his claim for asylum. The Tribunal heard the case by way of reconsideration of a decision of the Tribunal dated 1 st April 2009. It was held that, on the earlier occasion, the Tribunal had not materially erred in law. As will appear, the Secretary of State will now consent to a remittal to the Tribunal; the appellant submits that the appeal should be allowed outright.
KM is a citizen of Zimbabwe and is 53 years old. He claims to have entered the United Kingdom in January 2003 on a false South African passport. He was granted 6 months leave to enter as a visitor. He claimed asylum on 20 August 2008.
It was given approaching 2 1/2 years ago, but the relevant country guidance is that given by the Tribunal in RN (Returnees) Zimbabwe CG [2008] UKAIT 00083. The Tribunal cited the guidance at length and clearly accepted its applicability. Central to the guidance is that a person not able to demonstrate loyalty to Zanu-PF will be at real risk on return to Zimbabwe. At paragraph 234 of RN it is stated:
"For these reasons, a person not able to demonstrate loyalty to Zanu-PF or with the regime in some form or other will be at real risk having returned to Zimbabwe from the United Kingdom having made an unsuccessful asylum claim. That will be regardless of the mechanics of his return. Those with whom he would have to deal in his home area or other place of relocation would be concerned, once he had failed to demonstrate any links with Zanu-PF, not with the method by which he had been returned from the United Kingdom but simply with the fact that his having made an asylum claim here demonstrated him to be a disloyal person who had not supported the party in the elections and as a potential supporter of the MDC."
At paragraph 238, the Tribunal stated:
"We have, then, a very large body of compelling evidence of the risk to those returning from the United Kingdom after having made an unsuccessful asylum claim at the hands of the militias, War Veterans and Zanu-PF groups to be encountered in Zimbabwe, if such returnees are unable to demonstrate loyalty to Zanu-PF or to the regime. But there is no evidence at all that there has been any change of the approach taken at the airport by those monitoring arrivals from the United Kingdom."
The Tribunal added, at paragraph 258:
"The evidence establishes clearly that those at risk on return to Zimbabwe on account of imputed political opinion are no longer restricted to those who are perceived to be members or supporters of the MDC but include anyone who is unable to demonstrate support for or loyalty to the regime or Zanu-PF."
The Tribunal cited paragraph 258 and also paragraph 259 where it is stated that the fact of having lived in the United Kingdom for a significant period of time and having made an unsuccessful asylum claim are both matters capable of giving rise to an enhanced risk.
The Tribunal assessed the findings of the Tribunal on the earlier occasion and stated its own conclusions:
"17. I am not satisfied that the judge erred in law in rejecting the account given, both by the appellant and his son. Each case must be determined on the evidence available at the hearing and the judge had more evidence before him than was before the judge who heard the son's appeal. The judge clearly took into account, and it was common ground, that the appellant's son had been granted refugee status. The judge has explained why, in relation to the issues before him, he did not find the appellant's son to be credible. I am not satisfied that it is arguable that the fact that the appellant's son has been granted refugee status would by itself mean that the appellant would be at real risk of finding himself in a situation when he could not demonstrate loyalty to the regime. It must be considered whether those he might come into contact with would know that his son had been granted refugee status and this would be very unlikely if the risk is from war veterans, militia or Zanu-PF supporters. There also needs to be an assessment of the circumstances in which it is said that there is a real risk of the appellant being called upon to demonstrate his loyalty.
18. In the light of the judge's findings of fact I am not satisfied that the appellant established any adequate factual basis to support his claim that he would be at real risk of finding himself in a position where he was unable to demonstrate loyalty to the regime. The judge found that the appellant had no profile in Zimbabwe and had not been involved in MDC activities. There was no reasonable degree of likelihood that the grant of status to his son would be known to those who might call upon him to show loyalty and he also failed to establish any serious possibility of finding himself in a position that such a call would not be made on him. Finally, he failed to show that his background, his profile or his beliefs were such that he would not be able to demonstrate loyalty."
On behalf of the Secretary of State, it is accepted that the appeal should be allowed to the extent of the case being remitted to the Upper Tribunal. The Secretary of State's reason was that "it is arguable that the [Tribunal] failed to give adequate consideration to the assessment of risk on return in light of the country guidance case of RN (Zimbabwe) and HS (Zimbabwe) and any risk that may arise if the appellant were to be questioned on return regarding his son's asylum grant". I would add that, in the light of the paragraphs from RN already cited, the absence of a 'profile' in Zimbabwe is insufficient protection. Support for or loyalty to the regime must be 'demonstrated'. At the hearing before this court, Miss Grange, for the Secretary of State, accepted that there is a real risk that the appellant's son having obtained asylum because of his MDC's sympathies would come out on the appellant's return.
In the earlier decision of 1 April 2009, the Tribunal placed reliance on the lack of credibility of the appellant and his son. It was stated, at paragraphs 49 and 50:
"49. In summary I find that the Appellant and his son are not reliable witnesses with regard to events in Zimbabwe as their evidence is mutually and internally incompatible and cannot be reconciled with the objective material either. I do not believe that the Appellant has a profile in Zimbabwe. In the absence of credible and reliable evidence I do not accept that he has been in the UK for the time he claims.
50. This is a case where the Appellant cannot demonstrate an inability to show loyalty to the regime in Zimbabwe. His evidence is such that he does not fall into any of the risk categories identified in the cases of SM or RN. His claim for asylum or Humanitarian Protection fail and he does not qualify under articles 2 or 3 of the ECHR."
That led to the Tribunal's conclusion that "the appellant cannot demonstrate an inability to show loyalty to the regime in Zimbabwe". If there was, in paragraph 50, a finding that the appellant did not come into a higher risk category, it was plainly wrong.
In the decision challenged, the Tribunal had regard to the finding of lack of credibility, as stated at paragraph 17, and also at paragraph 16 where it was stated that in the first decision the Tribunal was "entitled to take the view that these [discrepancies] fundamentally undermine the credibility of both the appellant and his son and neither could be regarded as reliable witnesses". In that paragraph, the Tribunal added:
"… It is clear from RN that the fact simply of having made an unsuccessful asylum claim and having spent a period of time in the UK will not without more give rise to a real risk of persecution on return to Zimbabwe. The Tribunal accepted, however, that someone unable to demonstrate loyalty if called upon to do so might find themselves at risk. The only factor in the present case to support such a contention is the grant of refugee status to the appellant's son."
When granting permission to appeal to this court on a consideration of the papers, Longmore LJ stated:
"It is arguable that on return the applicant is likely to be asked where his family is. Unless he lies, he will have to say that his son has been granted asylum in England. It will then be assumed that the son is hostile to the regime; that might arguably make it difficult for the applicant to demonstrate loyalty to the regime. Those asking questions in Zimbabwe will not be interested in the credibility of the way in which the son obtained asylum and it is arguable that the emphasis on the son's credibility may have been misplaced."
It is acknowledged by the Secretary of State that the son has been granted asylum by reason of his support for the MDC and requires protection as an MDC supporter. I agree with...
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