RK (Zimbabwe) v Secretary of State for the Home Department

Hearing date: 3 March 2011

This is an appeal, with permission granted by Sir Richard Buxton on limited grounds on 13 May 2010, against the determination of Immigration Judge Sommerville made at a second stage reconsideration and sent out on 11 January 2010. By that decision the IJ dismissed the appellant's appeal against the Secretary of State's refusal of asylum on 19 March 2009 and held that she was not eligible for humanitarian protection.

The appellant is a national of Zimbabwe aged 28. She claims to have entered the United Kingdom on 20 August 2002 and to have been granted leave to enter for six months. She applied for but on 6 January 2003 was refused a student visa. A further application was refused on 4 April 2003; however after a yet further application the appellant was granted leave to remain. That leave was renewed from time to time, finally expiring on 31 October 2008. The appellant applied on 22 November 2008 for leave to remain as what is called a Tier 1 migrant, but that was refused on 22 December 2008. Thereafter on 21 January 2009 she claimed asylum. That was as I have said refused on 19 March 2009. The appellant appealed against that decision. The appeal came before IJ Meah, who on 6 May 2009 allowed it on asylum grounds but dismissed the human rights grounds. On the Secretary of State's application a second stage reconsideration was ordered by IJ Southern on 14 October 2009. The IJ held that IJ Meah had erroneously held, in effect, that the appellant had established a well founded fear of persecution solely by virtue of the fact that she faced being returned to Zimbabwe as a failed asylum-seeker after a period of years' residence in the United Kingdom. SIJ Southern however went on to observe that IJ Meah had not considered the appellant's claim to be a refugee sur place, and that the matter would have to proceed to a further hearing on the merits at which paragraphs 11–13 of IJ Meah's findings would constitute the factual starting point. In those paragraphs IJ Meah had made comprehensive findings to the effect that the appellant's account was incredible, especially as regards the assertion that her brothers were affiliated to the MDC and that she was transferring money to Zimbabwe for the support of the MDC.

And so, as I have said, the matter came before IJ Sommerville for a second stage reconsideration. That was on 17 December 2009. The appellant's representative sought an adjournment. The IJ refused that application for reasons he gave at paragraph 11. This was complained of in the notice of appeal to this court, but Sir Richard Buxton declined to grant permission on that ground.

IJ Sommerville proceeded to discuss the facts of the case, and referred to the appellant's assertion that in October 2008 she had joined an organisation called the Restoration of Human Rights (ROHR) which was opposed to the Mugabe regime (see paragraph 26 of IJ Sommerville's determination).

The IJ referred to the leading country guidance case of RN (Zimbabwe)[2008] UKAIT 00083, and said this in paragraph 30:

"There has been a significant change in country conditions in Zimbabwe since the date of the IJ's determination. If unsuccessful in this appeal the appellant faces the prospect of return to Zimbabwe as a failed asylum seeker who has been living for some years in the United Kingdom. That may be sufficient to place her within a risk category identified in RN. But that establishes only that the appellant would fall within a group of persons who may be at risk on return and not that she will be at risk.RN is to be read and applied as a whole."

The IJ considered (paragraph 31) that there were "formidable difficulties" in the way of the appellant's demonstrating an inability to show loyalty to the Zanu-PF regime. As regards the sur place claim, the IJ did not accept that the appellant's ROHR membership was genuine or that she was a genuine member or supporter of ROHR (paragraph 33–34), nor that (paragraph 34) her political activities in this country "were a genuine expression of her political views". He concluded (paragraph 35) that the appellant had failed to discharge the burden of showing that she would be at risk on return.

In a passage in the appellant's first skeleton argument to which Sir Richard Buxton attached importance, counsel says this (paragraph 6):

"[E]ven if the appellant's entire sur place activities were correctly rejected by the Immigration Judge, it still left the case in which (i) the appellant has been outside of Zimbabwe for some 8 years, (ii) she has not voted in the recent elections in Zimbabwe and thereby cannot show loyalty to the regime there, (iii) she will be returned as an involuntary returnee from Britain which is seen by the regime in Zimbabwe as hostile…"

Referring to this passage Sir Richard opined that the appellant fell within the risk category identified in paragraphs 231 – 234 of RN as a person at risk from militias or gangs. I should read paragraphs 230 – 234:

"230. It remains the position, in our judgment, that a person returning to his home area from the United Kingdom as a failed asylum seeker will not generally be at risk on that account alone, although in some cases that may in fact be sufficient to give rise to a real risk. Each case will turn on its own facts and the particular circumstances of the individual are to be assessed as a whole. If such a person (and as we explain below there may be a not insignificant number) is in fact associated with the regime or is otherwise a person who would be returning to a milieu where loyalty to the regime is assumed, he will not be at any real risk simply because he has spent time in the United Kingdom and sought to extend his stay by making a false asylum claim.

231. But, apart from in those circumstances, having made an unsuccessful asylum claim in the United Kingdom will make it very difficult for the returnee to demonstrate the loyalty to the regime and the ruling party necessary to avoid the risk of serious harm at the hands of the war veterans or militias that are likely to be encountered either on the way to the home area or after having returned there. This is because, even if such a person is not returning to one of the areas where risk arises simply from being resident there, he will be unable to demonstrate that he voted for Zanu-PF and so he may be assumed to be a supporter of the opposition, that being sufficient to give rise to a real risk of being subjected to ill-treatment such as to infringe Article 3.

232. And, regardless of the political opinion or associations of the individual, or the absence of any at all, the persecution involved in the infliction of such ill-treatment will be for a reason recognised by the Convention. This is because it is inflicted on the basis of imputed political opinion.

233. In our view the...