RN (Returnees)

JurisdictionEngland & Wales
CourtAsylum and Immigration Tribunal
JudgeSenior Immigration Judge Southern
Judgment Date30 Oct 2008
Neutral Citation[2008] UKAIT 83

[2008] UKAIT 83

Asylum and Immigration Tribunal

The Immigration Acts

Before

Senior Immigration Judge P. R. Lane

Senior Immigration Judge Perkins

Senior Immigration Judge Southern

Between
RN
Appellant
and
The Secretary of State for the Home Department
Respondent
Representation:

For the Appellant: Mr M. Henderson, Counsel, instructed by I.A.S.

For the Respondent: Mr S. Kovats, Counsel, instructed by the Treasury Solicitor.

RN (Returnees) Zimbabwe CG

1. 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 ofthe MDC but include anyone who is unable to demonstrate support for or loyalty tothe regime or Zanu-PF. To that extent the country guidance in HS is no longer to befollowed. But a bare assertion that such is the case will not suffice, especially in the case of an appellant who has been found not credible in his account of experiences in Zimbabwe.

2. There is clear evidence that teachers in Zimbabwe have, once again, become targets for persecution. As many teachers have fled to avoid retribution, the fact of being a teacher or having been a teacher in the past again is capable of raising an enhanced risk, whether or not a person was a polling officer, because when encountered it will not be known what a particular teacher did or did not do in another area.

3. It is the CIO, and not the undisciplined militias, that remain responsible for monitoring returns to Harare airport. In respect of those returning to the airport there is no evidence that the state authorities have abandoned any attempt to distinguish between those actively involved in support of the MDC or otherwise of adverse interest and those who simply have not demonstrated positive support for or loyalty to Zanu-PF. There is no reason to depart from the assessment made in HS of those who would be identified at the airport of being of sufficient interest to merit further interrogation and so to be at real risk of harm such as to infringe either Convention.

4. Although a power sharing agreement has been signed between Mr Mugabe on behalf of Zanu-PF and Mr Tsvangirai on behalf of the MDC, the evidence presented does not demonstrate that the agreement as such has removed the real risk of serious harm we have identified for anyone now returned to Zimbabwe who is not able to demonstrate allegiance to or association with the Zimbabwean regime.

5. General country conditions and living conditions for many Zimbabwean nationals have continued to deteriorate since the summer of 2007. Some may be subjected to a complete deprivation of the basic necessities of life, for example access to food aid, shelter and safe water, the cumulative effect of which is capable of enabling a claim to succeed under article 3 of the ECHR. But that will not always be the case and each claim must be determined upon its own facts.

DETERMINATION AND REASONS
1

This is the determination of the Tribunal to which each member of the panel has contributed. We should say at the outset that the Tribunal has made an order under section 11 of the Contempt of Court Act 1981 that prevents the disclosure of the identity of some of the sources of the material which we take into account and to which we refer in this determination. Where we refer to a witness or an organisation by name that is because they have not sought anonymity and are content to be identified.

2

Because of the way in which events evolved as the hearing progressed it was necessary to amend that order by way of extending its scope. It may be helpful to explain why before progressing any further.

3

At the close of proceedings on 5 th September 2008 we indicated that if, before the Tribunal's determination was promulgated, an event occurred that was capable of indicating a fundamental change in country conditions, the Tribunal would reconvene the hearing to enable the parties to advance such additional evidence and submissions as might be thought to be appropriate.

4

Subsequently we became aware of reports in the media that an agreement had been reached between Mr Mugabe and Mr Tsvangirai regarding a power sharing arrangement for the future governance of Zimbabwe. We considered that to be a development of such potential importance as to require us to allow the parties such an opportunity to comment.

5

The hearing was reconvened on 1 st October. After hearing submissions from both parties to the appeal we decided that there was at least a real possibility that the power sharing agreement had the potential to alter significantly the political landscape in Zimbabwe and that this was a matter the Tribunal should deal with in this determination. In order to allow all concerned to address this issue the hearing was adjourned for one final day, on 30 th October 2008. As we had resolved to address the impact of the power sharing agreement, we invited submissions on materials relating to the agreement (in the form of press reports) that the Tribunal had identified, as well as permitting the parties to adduce evidence regarding the issue. In following this course we were mindful of the stance adopted by the respondent, as described below at paragraph 28 of this determination.

6

On the 30 th October the Tribunal reconvened. We heard further oral evidence from the only witness to have given oral evidence for the respondent, Mr Mark Walker, Senior Executive Officer in the Country Specific Asylum Policy Team with responsibility for Zimbabwe. We consider that evidence in detail below, at paragraphs 152 and 199. That oral evidence was limited to the adoption of a further witness statement to which was exhibited a collection of reports of interviews recently carried out with representatives of organisations in Zimbabwe who were thought to be in a good position to comment upon current country conditions. We will consider this additional evidence, and our approach to it, in greater detail later in this determination. But it was to preserve the anonymity of most of those participating in those interviews that the scope of the order was extended.

The appellant's claim
7

The appellant, who was born on 20 th June 1969, is a citizen of Zimbabwe. She arrived in the United Kingdom on 23 rd January 2006 and claimed asylum the following day. Although she held no political beliefs and had engaged in no political activities, she had in the past worked as a teacher and, as someone not actively involved in supporting Zanu-PF, she said she would be assumed to be a supporter of the opposition, particularly because she would be returning after spending some time in the United Kingdom. Also, she feared retribution from a former boyfriend who had been violent towards her and towards her mother after her departure from Zimbabwe.

The appellant's appeal
8

The appellant appealed against the removal decision that accompanied refusal of her asylum claim on 13 th March 2006. That appeal was dismissed by Immigration Judge Phillips following a hearing on 27 th April 2006.

9

Reconsideration of that decision was ordered because the immigration judge had declined to determine the appellant's appeal on human rights grounds, explaining that, as the refusal letter stated that the respondent had suspended involuntary returns of failed asylum seekers to Zimbabwe, he considered it inappropriate to deal with the grounds of appeal argued on human rights grounds. That, plainly, was an error of law: see JM v SSHD [2006] EWCA Civ 1402. The immigration judge was required by section 86(2) of the Nationality, Immigration and Asylum Act 2002 to determine any matter raised as a ground of appeal and it was a material error because it did not follow that because he had dismissed the appeal on asylum grounds the appeal could not succeed on human rights grounds either. The full written reasons given by the Tribunal for finding that the immigration judge made a material error of law are set out below in the First Appendix.

10

The scope of the reconsideration that was to follow was made clear in the written reasons given by the Tribunal following a first stage reconsideration hearing. Although the Tribunal identified a material error of law such as to require the substitution of a fresh decision to allow or to dismiss the appeal, that error did not infect the findings of fact made by the immigration judge and so those findings were preserved. (See the Second Appendix.)

11

As the Tribunal has become aware of new evidence tending to suggest that country conditions in Zimbabwe had continued to deteriorate, the reconsideration of this appeal was identified as a suitable vehicle for the Tribunal to give country guidance in respect of Zimbabwe. But issues regarding the scope of the reconsideration and the appropriateness of taking this opportunity to update country guidance have been raised by the parties. Mr Henderson, who appeared for the appellant, sought to widen the scope of the reconsideration so that all issues of fact should be at large, notwithstanding what we say above. Mr Kovats, for the respondent, submitted that given the fluidity of events in Zimbabwe it was not appropriate at this time for the Tribunal to update the country guidance presently available.

12

We shall deal with these issues before examining in detail this appellant's case and the evidence offered in support of her claim to be a refugee. Before doing so, something needs to be said about the existing country guidance on Zimbabwe.

The status of existing country guidance
13

The most recent country guidance is HS (returning asylum seekers) Zimbabwe CG [2007] UKAIT 00094, published in November 2007. A summary of the Tribunal's conclusions in HS is set out in the head note as follows:

1
    Failed asylum seekers do not, as such, face a risk of being subjected, on return to Zimbabwe, to persecution or serious ill-treatment. That will...

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