Mlauzi v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE LATHAM,LORD JUSTICE NEUBERGER,LORD JUSTICE BROOKE |
| Judgment Date | 07 February 2005 |
| Neutral Citation | [2005] EWCA Civ 128 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | C4/2004/2012 |
| Date | 07 February 2005 |
[2005] EWCA Civ 128
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE IMMIGRATION APPEAL TRIBUNAL
Royal Courts of Justice
Strand
London, WC2
Lord Justice Brooke (Vice President of the Court of Appeal, Civil Division)
Lord Justice Latham
Lord Justice Neuberger
C4/2004/2012
MS N MALLICK (instructed by Duncan Lewis & Co) appeared on behalf of the Applicant
MR R TAM (instructed by the Treasury Solicitor) appeared on behalf of the Respondent
The appellant is a citizen of Zimbabwe who was born on 9th May 1963. She came to this country and sought asylum in December 2002. She sought asylum on the basis that she feared that she would suffer persecution if she were returned to Zimbabwe because of her imputed political opinion, namely her membership of the Movement for Democratic Change. Further, or alternatively, she submitted that her removal from the United Kingdom would contravene her human rights under the European Convention on Human Rights, relying on Article 3 of that Convention.
The respondent refused her leave to remain in the United Kingdom, either as a person who was entitled to the protection of the Refugee Convention, or a person who was entitled to the protection of the European Convention on Human Rights, on 24th June 2003. She appealed against that decision to an Adjudicator, who on 8th October 2003 allowed her appeal. The respondent then appealed to the Immigration Appeal Tribunal, which allowed the respondent's appeal in a determination of 22nd July 2004, and it is against that decision that the appellant appeals to us today.
In her evidence to the Adjudicator she stated that she had been a supporter, but not an active member, of the Movement for Democratic Change since its inception. At the relevant time, when the problems which resulted in her leaving Zimbabwe arose, she was, together with a partner, in the business of growing mushrooms. She employed in that business two men who for a three-week period simply did not turn up to work. They then came back to her and demanded wages for the weeks that they had not worked. There was an argument. The men accused the appellant of being a puppet for white people and of standing in the way of land distribution. It became apparent that they were either members of, connected with, or had friends in Zanu-PF and were also friendly with a group of local Zanu-PF supporters who were connected in turn with a number of war veterans.
The appellant was, as a result, seriously concerned that she may become the target of reprisals by the Zanu-PF supporters or the war veterans. Her fears on that account were fully justified because shortly after she had had the argument with her two employees, seven men who were clearly Zanu-PF supporters came to her house, jumping over the locked gates into the compound. She was at the time there with her son and her maid. Her husband was not present. She managed to hide; and, during the time that she was hiding, the maid was questioned. She overheard their questioning, which was clearly aggressive. Whilst they were there her husband arrived home. He was beaten and was interrogated as to her business. They appeared to believe that her business activities were a cover for political protest. They said that they would return to deal with the appellant and they then left.
As a result of that, she fled the house and went to stay with a friend in Bulawayo. She did not feel safe at her friend's house. She believed that as a new visitor she would attract suspicion and that local Zanu-PF supporters would pass on the information that she was there. Accordingly, she went to live with her mother in a rural area, also not far from Bulawayo, where she stayed for a week. However, the situation there caused her serious concern. There was talk of people being beaten and of newcomers to the area being suspected of political activities.
Her mother was afraid to let her stay with her; and she then went back to her friend's house. She decided to apply for a visitor's visa to the United Kingdom. Her intention at that time was simply to come to this country whilst the situation in Zimbabwe resolved itself. She optimistically hoped that the regime might in fact change whilst she was here. Unfortunately it did not. She remained, she said, in close contact with her husband. He informed her that Zanu-PF continued to target him and that at a meeting her name had been mentioned as someone whom the Zanu-PF remained interested in.
She has been told, she said, by her husband and by her maid that the Zanu-PF supporters still believed that her mushroom business was some sort of cover for a conspiracy directed against the government, and it was in those circumstances that she decided not to return to Zimbabwe but to apply for asylum as she did in this country.
The Adjudicator found that account credible. He described it as both internally consistent and plausible in the light of the objective evidence. He considered that in the circumstances he could accept her fear that Zanu-PF members did indeed believe that she was a person who held political views which were contrary to that of the government and, in the circumstances, that she was entitled to conclude that she was likely to be a target of their activities, which would involve violence to her and maybe even danger to her life.
The respondent's case before the Adjudicator had been that she could in fact, albeit in fear in or around Bulawayo, have lived safely elsewhere in Zimbabwe; in other words, that she could have found somewhere to live where she would not have been at risk of the sort of persecution which she feared. The Adjudicator's conclusion as to that in paragraph 11 of his determination was to this effect:
"As far as an internal flight option is concerned I accept the Appellant's contention that there is nowhere safe in Zimbabwe from Zanu-PF who are the national ruling party after all. I accept that sooner or later the Appellant would be likely to be identified. The fact that the Appellant may have been safe whilst in hiding at the houses of her friend and her mother does not mean to say that she would be able to live a normal life in another part of Zimbabwe if she were no longer in hiding."
It was on that basis that he concluded that she had established that she would be at a real risk of persecution and of having her Article 3 rights contravened were she to be returned to Zimbabwe.
The respondent, as I have already indicated, applied for permission to appeal to the Immigration Appeal Tribunal. The respondent was given permission on the grounds that the internal relocation issue raised an arguable point for the Tribunal to consider. The Tribunal in a short determination, set out its reasoning in paragraph 6 of the decision:
"We have reached the conclusion that we have no option but to allow this appeal. We accept Mr Saville's [the respondent's advocate] submission that she did in fact relocate without any difficulty albeit going to stay with a friend or her mother. We agree that there was no evidence that she was in hiding and it seems to be the case that she was leading a normal life. We take particular notice of the fact that there is no evidence to indicate that this appellant was politically active before she left her home. It follows that we have no evidence to support the contention that she is likely to become particularly active elsewhere in Zimbabwe. We accept that some MDC members might find themselves in difficulty with the authorities but this can only arise if there is some triggering event. In the respondent's case she made certain derogatory remarks [about] the President and that for her was the triggering incident. We have no reason to believe that that is likely to happen again."
The appellant has appealed to this court on the basis that the Tribunal was simply not entitled to interfere with the conclusion of the Adjudicator as to what essentially was a decision on the facts.
Mr Tam, who has appeared before us today on behalf of the respondent, accepts on behalf of the respondent that indeed the Tribunal did not have any jurisdiction to disturb the Adjudicator's conclusion on the basis of a disagreement as to fact. He has made that concession as a result of the decision of this court in the case of CA [2004] EWCA Civ 1165, a decision which was given by this court on 20th July 2004, which was some two days before the Tribunal's decision in this case. In his judgment, Laws LJ dealt with the position as to the jurisdiction of the Immigration Appeal Tribunal, which is relevant to this case, which is set out in the Nationality, Immigration and Asylum Act 2002, section 101(1), which provides as follows:
"A party to an appeal to an adjudicator under section 82 or 83 may, with the permission of the Immigration Appeal Tribunal, appeal to the Tribunal against the adjudicator's determination on a point of law."
Mr Tam accepts on behalf of the respondent that on its face the Tribunal does not appear to have directed itself that it was only entitled to interfere with the Adjudicator's decision if it could discern a point of law on which the Adjudicator had erred. In those circumstances he accepts that the appeal should be allowed.
He submits, however, that we should remit this case either to the Tribunal freshly constituted, or to an Adjudicator for the matter to be redetermined on the basis that although the appeal to the Tribunal was not dealt with by the Tribunal on the proper...
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