Lk (Aa Applied)
| Jurisdiction | England & Wales |
| Judge | C M G OCKELTON,DEPUTY PRESIDENT |
| Judgment Date | 08 November 2005 |
| Neutral Citation | [2005] UKAIT 159 |
| Court | Asylum and Immigration Tribunal |
| Date | 08 November 2005 |
[2005] UKAIT 159
ASYLUM AND IMMIGRATION TRIBUNAL
THE IMMIGRATION ACTS
The Honourable Mr Justice Hodge OBE (President)
Mr C M G Ockelton (Deputy President)
Dr H H Storey (Senior Immigration Judge)
For the Appellant: Mr K Kuranchie of Refugee Legal Centre
For the Respondent: Mr G Saunders, Home Office Presenting Officer
LK (AA applied) Zimbabwe
Neither the decision of the Court of Appeal in GH v SSHD [2005] EWCA Civ 1182 nor the suspension of removals to Zimbabwe affects the force of AA [2005] UKAIT 00144 , which remains current country guidance.
The Appellant is a citizen of Zimbabwe. She came to the United Kingdom on 11 November 1999 and was granted six months leave to enter. Following the expiry of that leave on 11 May 2000, she did not leave the United Kingdom but overstayed. No action was taken against her. On 7 July 2004, she was still in the United Kingdom and decided to claim asylum. On 20 August 2004, she was notified of the Respondent's decision to refuse her asylum and to remove her as an overstayer. She appealed. Her appeal was heard by an Adjudicator, Miss D M Lambert, and allowed in a determination sent out on 15 November 2004. The Respondent applied for and was granted permission to appeal to the Immigration Appeal Tribunal. Following the commencement of the appeals provisions of the 2004 Act, the grant of permission takes effect as an order for reconsideration by this Tribunal.
The basis of the Appellant's claim is that, as a homosexual, she fears persecution in Zimbabwe. Although she attempted to be discreet about her sexual orientation, she suffered persecution for it before she left Zimbabwe and fears that she would do so again. Further, the persecution took the form of a (heterosexual) rape as a result of which she now has an advanced HIV condition. This has become apparent only since her asylum claim was made: as a result, she has also claimed that her removal would breach her rights under Articles 3 and 8 of the European Convention on Human Rights, because she would not have sufficient access to medical treatment if she were returned to Zimbabwe.
Since coming to the United Kingdom, she has given birth to a baby, as a result of casual sex following the break up of her relationship with her partner.
The Adjudicator accepted the Appellant's story as credible. She accepted also the Appellant's explanation for her failure to apply for asylum either on arrival or soon afterwards. She found that despite the existence of well-organised pressure groups for homosexuals in Zimbabwe the Appellant herself would be at risk if she returned to Zimbabwe, and that there was no reason to suppose that future attempts to be discreet would be any more successful than past attempts had been. For this reason, she declined to follow the conclusions of the Tribunal in JD [2004] UKIAT 00259. She indicated that she would have been inclined to apply the decision of the High Court of Australia in S [2003] HCA 71: but, given her factual findings on the ineffectiveness of discretion, that view was not in the end material to the decision she made.
The Secretary of State's grounds of appeal assert that, given that the Appellant had no intention of broadcasting her sexuality, the Adjudicator ought to have followed JD rather than any other authorities referring to the situation where a person might, against their will, be required to hide their sexuality. He argues that the Adjudicator's failure to make a clear finding of fact as to who was responsible for the rape following the discovery of the Appellant's sexual orientation invalidates her decision and that the fact that she would now be returned with a baby further reduces any risk that there would be any adverse reaction to her as a homosexual. The existence of a group called Gays and Lesbians in Zimbabwe (GALZ) demonstrates, in the Secretary of State's view, that the Adjudicator overestimated the risk to the Appellant. The Secretary of State adds that the Adjudicator erred in counting the fact that her cousin was murdered in Harare as further increasing the Appellant's fear of harm. Lastly, the Secretary of State argues that the Adjudicator was wrong to reach the conclusion that the appeal ought to be allowed under Article 8 simply on the basis that it was being allowed under the Refugee Convention and Article 3.
So far as the Secretary of State's specific grounds of appeal are concerned, we are satisfied that only the last-mentioned has any merit. In our view, it is entirely right to say that the Adjudicator should not have allowed the appeal separately under Article 8 without reaching any view on whether the rights protected by Article 8 would be breached by the Appellant's removal. There is nothing in any of the other grounds. It was the Adjudicator's job to decide whether the Appellant was to be believed, and to assess all the evidence before her before reaching a conclusion on the facts. She was amply entitled to decide that, in the light of the Appellant's evidence of her history, which she accepted, the Appellant would be at risk on return. That assessment was properly made on an individual basis. It is not suggested that it ran counter to any applicable country guidance. JD is not a country guidance decision. The Adjudicator appears to us to have taken proper account of its conclusions in reaching her own on the rather different facts of this appeal.
As the Adjudicator remarked, the Appellant's illness does not bring her within the band of exceptional severe cases whose removal from the United Kingdom would cause a breach of Article 3 or Article 8. But given her conclusions on the facts, we can see no error of law in her finding that the Appellant was at such risk of ill-treatment for her sexual orientation as to bring her within the definition of a refugee and also show that her removal would expose her to risk of ill-treatment proscribed by Article 3. She was thus entitled to allow the appeal on refugee and human rights grounds.
There is, of course, now a shorter route to the conclusion that the Appellant is entitled to refugee status in the United Kingdom. As the Secretary of State recognised, the decision of this Tribunal in AA [2005] UKAIT 00144, which is a country guidance case, might be regarded as leading to the conclusion that the Appellant should in any event be regarded as a refugee. The present reconsideration is by Rule 62(7) limited to the grounds of appeal upon which the Immigration Appeal Tribunal granted permission, but those grounds do as we read them permit us to look generally at the question whether the Adjudicator materially erred in law in allowing the Appellant's appeal on refugee grounds. In this appeal as, we understand, in others, the Secretary of State now argues that the country guidance of AA should not be followed. This appeal therefore provides an opportunity for the Tribunal as presently constituted to give an authoritative view on the arguments being adduced by the Secretary of State.
The appeal of AA was heard with a view to giving country guidance on returns to Zimbabwe. A great deal of evidence, both documentary and oral, was considered. The Tribunal found, on the basis of the evidence before it, that a citizen of Zimbabwe involuntarily returned there from the United Kingdom had a well-founded fear of persecution for a Convention reason. The basis for that fear is the way in which those returned involuntarily from the United Kingdom to Zimbabwe appear to be treated at Harare Airport. Following the decision of the Court of Appeal in Mbanza v SSHD [1996] Imm AR 136, upholding ( R v IAT ex parte Senga unreported, 9 March 1994), that is sufficient to give the individual in question status as a refugee. For this reason, there was no full investigation in AA of the risk to those returned after they have passed through the airport (if they are allowed to do so); and, as the Tribunal noted in AA, the Secretary of State conceded in that case that any ill-treatment received on return would be “ for a Convention reason”.
The decision in AA was communicated orally in court on 14 October 2005. As the Tribunal remarked on that occasion, that oral communication was not the judgment. Under rule 23 of 2005 Procedure Rules, notification of the determination of the Tribunal in an asylum case is to be done in writing to the Secretary of State, following which it is his task to serve it on the Appellant. We understand that that rule was specifically sought by the Secretary of State: certainly he is fully aware of it.
The matter is of some importance in the light of one of the arguments adduced before us. The Secretary of State points out that on 14 October, the day on which the Tribunal gave oral notification of its decision, he announced that returns to Zimbabwe had been suspended. He now submits that the suspension of returns to Zimbabwe is an event which took place after the judgment in AA and thus casts doubt upon its continued force. That, in our judgment, is simply wrong. The position on 14 October was that the Tribunal had given...
To continue reading
Request your trial
-
AA v Secretary of State for the Home Department;
...UKAIT 001144 CG [2005] UKAIT 00159" class="content__heading content__heading--depth1"> [2006] EWCA Civ 401 [2005] UKAIT 001144 CG [2005] UKAIT 00159 IN THE SUPREME COURT OF JUDICAT COURT OF APPEAL (CIVIL DIVISI ON APPEAL FROM THE ASYLUM AND IMMIGRATION TRIBU Royal Courts of Justice Strand, ......
-
LK (AA applied) Zimbabwe
...Office Presenting Officer, for the Respondent. Cases referred to: AA (Involuntary returns to Zimbabwe) Zimbabwe [2005] UKAIT 00144 [2005] UKAIT 00159 Asylum and Immigration Tribunal The Honourable Mr Justice Hodge OBE, President, Mr C M G Ockelton, Deputy President, and Dr H H Storey, Seni......
-
Upper Tribunal (Immigration and asylum chamber), 2005-11-16, [2005] UKAIT 159 (LK (AA Applied))
...{ font-family: "Times New Roman", serif; font-size: 12pt; so-language: ar-SA } ASYLUM AND IMMIGRATION TRIBUNAL LK (AA applied) Zimbabwe [2005] UKAIT 00159 THE IMMIGRATION ACTS Heard at: Field House Date of Hearing: 8 November 2005 Before: The Honourable Mr Justice Hodge OBE (President) Mr C......
-
MASHIRI v Secretary of State for the Home Department
...promulgated determinations known as AA (Involuntary returns to Zimbabwe) Zimbabwe [2005] UKAIT 00144 CG and LK (AA applied) Zimbabwe [2005] UKAIT 00159. The former, applied in the latter, suggests that the treatment of failed asylum seekers upon enforced return to Zimbabwe exposes them to a......