RT (Zimbabwe) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judgment Date | 18 November 2010 |
| Neutral Citation | [2010] EWCA Civ 1285 |
| Date | 18 November 2010 |
| Docket Number | Case No: C5/2010/1220, C5/2010/0240, C5/2010/1535, C5/2010/1175 |
| Court | Court of Appeal (Civil Division) |
[2010] EWCA Civ 1285
DIJ Manuell, IJ Charlton-Brown, DIJ Digney and IJ Gerrey, DIJ Shaerf
Before: Lord Justice Carnwath
Lord Justice Lloyd
and
Lord Justice Sullivan
Case No: C5/2010/1220, C5/2010/0240, C5/2010/1535, C5/2010/1175
AA/03852/2009, AA/10471/2008, AA/09201/2008, AA/06786/2009
IN THE HIGH COURT OF JUSTICE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM
THE UPPER TRIBUNAL (IMMIGRATION AND ASYLUM CHAMBER) AND ASYLUM AND IMMIGRATION TRIBUNAL
Mr Hugo Norton-Taylor (i nstructed by Messrs Luqmani Thompson & Partners) for the 1 st, 2 nd & 3 rd Appellants
Mr Hugo Norton-Taylor and Ms Sandra Akinbolu ( instructed by Messrs Wilson Solicitors LLP) for the 4 th Appellant
Mr Alan Payne (instructed by the Treasury Solicitor) for the Respondent
Hearing date : 20 October 2010
Lord Justice Carnwath :
Introduction
This is the judgment of the court to which all members have contributed.
The appellants are Zimbabwean nationals whose claims to asylum have been rejected by the Asylum and Immigration Tribunal, by reference to the guidelines in RN(Zimbabwe CG) [2008] UKAIT 00083. The main issue in all the cases is whether those guidelines have been correctly applied. However, an additional issue of principle was identified by Sir Richard Buxton when granting permission, which he expressed in this way:
“The jurisprudence in relation to return to Zimbabwe has to date assumed that it is legitimate to require applicants, in order to avoid persecution, to demonstrate loyalty to Zanu-PF, itself a persecutory regime. That assumption appears to conflict with the decision of the Supreme Court in HJ(Iran) v SSHD [2010] UKSC 31; [2010] 3 WLR 386.”
In the event, neither side before us submitted that there was any conflict between the current tribunal guidance, as expressed in RN(Zimbabwe), and the reasoning in HJ(Iran). However, both seek to rely on that reasoning in support of their submissions as to how the guidance is to be applied to cases such as the present. That country guidance is itself now under review by the Upper Tribunal, in a case which began at the same time as the hearing of this appeal. We understand that the Government has indicated that there will be no forced removals to Zimbabwe until that case is decided. However, that has no direct relevance to the present decisions, whose legality must be tested by reference to the guidance applicable when they were decided.
The facts of the four cases, and the findings of the tribunal, are summarised later in this judgment. Although there are some factual differences between the four cases, they have much in common. It could be said that the claimants are not in any ordinary sense “political refugees”. They have not been found to have any particular political commitments or to have suffered because of them; they left Zimbabwe for reasons which are unrelated to any political activities there; and they have not engaged in any significant political activities here. However, it is clear that even the politically indifferent may be persecuted for opinions “imputed” to them by the authorities in their home country (see MacDonald's Immigration Law and Practice para 12.75). Thus, these claimants argue that regardless of their actual political beliefs or activities, or lack of them, there is a risk, particularly having regard to their long absence from Zimbabwe, that if returned to Zimbabwe they will suffer persecution because of their unwillingness or inability positively to prove their loyalty to the Mugabe regime.
They have been jointly represented by Mr Norton-Taylor, for whose skilful submissions we are grateful. The case rests on three main submissions (in the words of his skeleton argument):
“Firstly, the ratio of HJ (Iran) applies equally to cases concerning political opinion and RN is consistent with this. Thus, an individual found to hold genuine political beliefs cannot be required to modify their behaviour or deny their beliefs in order to avoid persecution. (“the pure HJ(Iran) issue”)
Secondly, it is impermissible to require an appellant to actively profess a loyalty to a regime which he does not possess or otherwise lie to the authorities of the home country or other potential persecutors in order to avoid a condition of persecution. Again, the Zimbabwean country guidance decisions are consistent with this proposition. (“the extended HJ(Iran) issue”)
Thirdly, the Tribunal in each of these linked appeals erred in their application of RN, irrespective of the first two submissions. This final submission may prove to be determinative of all four appeals.” (“the RN issue”)
Before considering the submissions in more detail, it is necessary to refer to the recent decision of this court in TM(Zimbabwe) v SSHD [2010] EWCA Civ 916, which covered much of the same ground, in relation to a group of cases on very similar facts.
The legal framework
The judgment of Elias LJ contains a full exposition of the legal framework, and of the guidance in RN, which we gratefully adopt. At the outset he emphasised the limited role of this court on an appeal from immigration judges, whose decisions “should be respected unless it is quite clear that they have misdirected themselves in law” (per Lady Hale, AH(Sudan) v Home Secretary [2008] 1 AC 678, para 30).
As he explained, the key point of the new guidance in RN was the risk now identified to those unable positively to demonstrate loyalty to the regime:
“The evidence establishes clearly that 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 of the MDC but include anyone who is unable to demonstrate support for or loyalty to the regime or Zanu-PF. To that extent the country guidance in HS is no longer to be followed.” (para 258)
In that context Elias LJ highlighted two contrasting passages in RN, relied on respectively by the applicants and the Secretary of State:
“We observe here that there can be found within the extensive documentary evidence put before us other accounts of the means used by those manning road blocks to establish whether a person is loyal to the ruling party. For example, a person who was unable to produce a Zanu-PF card might be asked to sing the latest Zanu-PF campaign songs. An inability to do so would be taken as evidence of disloyalty to the party and so of support for the opposition. Clearly, a person returning to Zimbabwe after some years living in the United Kingdom would be unlikely to be able to pass such a test.” (para 81)
“It remains the position, in our judgement, 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.” (para 230)
The tribunal in RN had identified certain categories of “enhanced risk”, including –
i) “the fact of having lived in the United Kingdom for significant period of time and of having made an unsuccessful asylum claim”;
ii) returning to a home “in an area where the MDC made inroads into the Zanu-PF vote” at the recent elections; and
iii) “the fact of being a teacher or having been a teacher in the past”.
As to these groups, Elias LJ summarised the effect of the guidance in this way:
“16. A question that arises from the guidance is this: what exactly is the significance of the fact that certain categories of asylum seekers will be in the heightened risk category? The fact that an asylum seeker falls into one or more of the enhanced risk categories is not of itself sufficient to justify the grant of asylum as paragraph 230 of the decision in RN, reproduced above, makes clear. The question is whether he faces a real risk of persecution on return; he will do so from the militia gangs unless he is able to show loyalty to the governing party.
17. So the onus is on the applicant to show that there is a real risk that he will not be able to demonstrate the required loyalty. Falling into a heightened risk category does not of itself constitute such evidence. Being a teacher or a failed asylum seeker is plainly not incompatible with being a Zanu-PF supporter or activist. It does, however, mean that the applicant will on return be likely to be subject to heightened scrutiny. If, for example, the authorities in Zimbabwe know that an asylum seeker was previously a teacher, they are more likely to start from the premise that he is likely to be hostile to the regime.”
As in the present case, there had been adverse credibility findings. Elias LJ commented on the significance of such adverse findings, having regard in particular to the judgments of this court in GM(Eritrea) v Secretary of State for the Home Department [2008] EWCA Civ 833. As he said, such a finding is not necessarily fatal to the case:
“The Tribunal must take account of all the...
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