LK (AA applied) Zimbabwe
| Jurisdiction | England & Wales |
| Judgment Date | 08 November 2005 |
| Date | 08 November 2005 |
| Court | Asylum and Immigration Tribunal |
Asylum and Immigration Tribunal
The Honourable Mr Justice Hodge OBE, President, Mr C M G Ockelton, Deputy President, and Dr H H Storey, Senior Immigration Judge
Representation:
Mr Kofi Kuranchie of the Refugee Legal Centre, for the Claimant;
Mr Glyn Saunders, Home Office Presenting Officer, for the Respondent.
Cases referred to:
AA (Involuntary returns to Zimbabwe) Zimbabwe [2005] UKAIT 00144 CG
AE and FE v Secretary of State for the Home DepartmentUNK [2003] EWCA Civ 1032, [2003] Imm AR 609; [2003] INLR 475
Danian v Secretary of State for the Home Department [1998] Imm AR 462; [1998] INLR 375
Gardi v Secretary of State for the Home DepartmentUNK [2002] EWCA Civ 750; [2003] Imm AR 39; [2002] INLR 499
Gardi v Secretary of State for the Home DepartmentUNK (No 2) (note) [2002] EWCA Civ 1560; [2002] INLR 499
GH v Secretary of State for the Home DepartmentUNK [2005] EWCA Civ 1182
JD (HomosexualMDC SupporterInternal relocation) Zimbabwe [2004] UKIAT 00259
KF (Removal directions and Statelessness) Iran [2005] UKIAT 00109
Mbanza v Secretary of State for the Home Department [1996] Imm AR 136
R v Immigration Appeal Tribunal ex parte SengaUNK, unreported 9 March 2004
S396/2002 v Minister for Immigration and Multicultural AffairsUNK [2003] HCA 71
Saad, Diriye and Osorio v Secretary of State for the Home DepartmentUNK [2001] EWCA Civ 2008; [2002] Imm AR 471; [2002] INLR 34
Legislation judicially considered:
Asylum and Immigration Tribunal (Procedure) Rules 2005, Rules 23 and 62(7)
Immigration (Notices) Regulations 2003, SI 2003/658, Article 5
Nationality, Immigration and Asylum Act 2002 ss 83, 84(1)(g) and 86(2)(a)
Asylum effect of ability to remove on determination of status Zimbabwe effect of suspension of removals on determination of status
The Claimant, a citizen of Zimbabwe, was granted leave to enter for six months. Her leave expired in May 2000 but she overstayed. In July 2004 she made an asylum and human rights application on grounds which included her sexual orientation. On appeal against the refusal of her application by the Secretary of State for the Home Department, an Adjudicator allowed her asylum appeal on the ground that she was at risk of ill-treatment by reason of her sexual orientation and her human rights appeal on the ground that the level of ill-treatment to which her removal would expose her for this reason would breach her rights under Articles 3 and 8 of the ECHR.
The Secretary of State was granted permission to appeal to the Immigration Appeal Tribunal, which took effect as an order for reconsideration by the Asylum and Immigration Tribunal.
Held, affirming the original determination allowing the Claimant's appeal against the decision by the Secretary of State:
(1) there was no error of law in the Adjudicator's finding on risk of ill-treatment which led her to allow the appeal on asylum and Article 3 grounds; she erred in allowing the appeal under Article 8 without reaching any view on whether the rights protected by Article 8 would be breached by removal, but this error was not material (paras 6 and 7);
(2) the suspension by the Secretary of State of returns to Zimbabwe which took place on the date on which the Tribunal gave an oral indication of its decision in AA (Involuntary returns to Zimbabwe) Zimbabwe CG [2005] UKAIT 00144 did not cast doubt upon the continuing force of that decision (paras 812);
(3) a refugee's status did not depend on the risk that he would be removed; a refugee remained entitled to all the benefits of the Refugee Convention while in the country in which he had sought refuge; in contrast a person who claimed that his removal would breach the ECHR had no particular status save that he had a right not to be removed; as a result, in the determination of an appeal on the ground provided by s 84(1)(g) of the Nationality, Immigration and Asylum Act 2002 that a claimant's removal would breach the Refugee Convention, the Tribunal was obliged to determine whether the claimant had the status of a refugee independently of any proposal to remove him: Saad, Diriye and Osorio v Secretary of State for the Home Department [2002] INLR 34 followed; GH v Secretary of State for the Home Department[2005] EWCA Civ 1182 distinguished (paras 13, 14 and 1722);
(4) a citizen of Zimbabwe who did not wish voluntarily to return to Zimbabwe at the present time had a well-founded fear of persecution under the Refugee Convention and was accordingly entitled to the status of refugee for reasons which depended on the projected removal but which were not related to removeability: AA applied (para 24).
Determination and Reasons
C M G Ockelton, Deputy President
[1] 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.
[2] 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.
[3] 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.
[4] 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...
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