SC (Zimbabwe) v Secretary of State for the Home Department
| Jurisdiction | UK Non-devolved |
| Judge | Mr Justice Blake,Juss |
| Judgment Date | 14 December 2011 |
| Neutral Citation | [2012] UKUT 56 (IAC) |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Date | 14 December 2011 |
[2012] UKUT 56 (IAC)
Upper Tribunal
(Immigration and Asylum Chamber)
THE IMMIGRATION ACTS
THE PRESIDENT, Mr Justice Blake
DEPUTY UPPER TRIBUNAL JUDGE Juss
For the Appellant: Mr N Smart Senior Home Office Presenting Officer
For the Respondent: Bake and Co Solicitors
SC (Article 8 — in accordance with the law) Zimbabwe
A decision to remove a claimant is in accordance with the law even if at the time of the decision there is a policy or practice not to enforce removals.
A decision to remove someone to Zimbabwe is not inconsistent with the statement of policy announced in October 2009.
A decision that was contrary to an established policy may be contrary to the law and thus incapable of justification under Article 8 ECHR.
In the absence of strong countervailing factors residence of 8 years in the United Kingdom with a child is likely to make removal at the end of that period not proportionate to the legitimate aims in this case.
This is the Secretary of State's appeal from a decision of Judge C Bennett dated 30 June 2010 allowing the claimant's appeal on human rights grounds while dismissing it on asylum grounds. We will direct that the claimant be referred to as C in these proceedings.
C is a national of Zimbabwe who came to the United Kingdom in July 2003 with her child HC (then aged 5). They were both given leave to enter as visitors and subsequently had their leave extended to February 2006 as dependents of her husband Mr C who was here as a student. A further child SHC was born in the United Kingdom in September 2005 and a third child was born here in February 2009. In February 2008 C applied for asylum identifying her two children as dependants. The application was refused in June 2008 and an appeal was dismissed in August 2008.
In May 2009 C made further representations in support of an asylum claim for herself and her family based on the decision in RN (Returnees) Zimbabwe CG [2008] UKAIT 00083 promulgated in the autumn of 2008 after C's appeal had been dismissed. This application was refused and a decision was made to remove C and her family in April 2010. They appealed and the appeal came before the First-tier judge in June 2010.
He concluded in summary as follows:-
-
i) He did not accept C's claims that the first judge had erred in rejecting important aspects of her case and there was insufficient new material to persuade him to accept C's contentions of being at particular risk in Zimbabwe.
-
ii) Nevertheless if he applied the guidance in RN (Zimbabwe) he would have allowed the appeal on asylum grounds as C and her family would be unable to demonstrate loyalty to ZANU-PF on return to Zimbabwe as she was a low level MDC supporter from Bulawayo.
-
iii) However, he did not apply the guidance in RN (Zimbabwe) as he was satisfied that circumstances had changed there since that decision, largely because of the power sharing agreement that had come into force. The risk of violence if C were to be returned to Zimbabwe was not such as to found an asylum or related protection claim.
-
iv) He concluded that there was private life established in the United Kingdom by reason of the seven years residence of C and her eldest child and Mr C in the United Kingdom and the residence of the other two children since their birth.
-
v) He further concluded that removal to Zimbabwe was an interference with that private life established here. However he decided that any interference was not in accordance with the law because at the date that he heard the appeal the Secretary of State had a policy not to remove failed asylum seekers to Zimbabwe and so the intended removal was not in accordance with policy and accordingly not in accordance with the law.
-
vi) He disagreed with and did not apply an unreported decision of the Asylum and Immigration Tribunal in CG v Secretary of State for the Home Department given on 12 February 2010 where Senior Immigration Judge Latter had reversed Judge Bennett on the same point. He concluded that the AIT had not referred to a decision of the Court of Appeal in CL (Vietnam) v SSHD [2009] 1 WLR 1873 that directed the judge's attention to the hypothetical removal and its consequences on the claimant even if there were no proposals to actually remove the claimant or do so in the near future.
-
vii) He allowed C's appeal on human rights grounds and indicated that the same would apply to her husband and children. He made no directions to give effect to his decision.
On 23 July 2010 the Secretary of State was granted permission to appeal against the judge's Article 8 decision.
It is not clear to us why it has taken such an inordinate length of time for this appeal to be listed for hearing. A period of delay of 17 months is not acceptable. On 8 December 2011 solicitors instructed for the claimant gave a rule 24 notice seeking to resurrect the asylum claim. That notice was given 16 months after the month provided for service of such notice in the Tribunal Procedure (Upper Tribunal) Rules 2008 rule 24 (2)(a).
In the meantime, there have been other developments relating to Zimbabwe and the application of Article 8 with respect to children who have lived in the United Kingdom for substantial periods. In March 2011 the Upper Tribunal delivered its Country Guidance case of EM and others (Returnees) Zimbabwe CG [2011] UKUT 98 (IAC). The UT concluded that there had been a material change of circumstances in Zimbabwe since RN (Zimbabwe) that was no longer to be followed as Country...
To continue reading
Request your trial
-
Khanum & Others (Paragraph 353B) [Upper Tribunal]
...at common law was always incompatible with Article 8 had been touched on in SC (Article 8 – in accordance with the law) Zimbabwe [2012] UKUT 00056 (IAC) and also more recently by the Court of Appeal in Gurung [2013] EWCA Civ 9. There was further support for the argument in Patel [2012] EWCA......
-
R (Gurung and Others) v Secretary of State for the Home Department
...45; [2010] 1 AC 345; [2009] 3 WLR 403; [2009] 4 All ER 1147; [2009] UKHRR 1104 SC (Article 8 — in accordance with the law) Zimbabwe [2012] UKUT 56 (IAC) Walumba Lumba (previously referred to as WL (Congo)) v Secretary of State for the Home Department; Kadian Mighty (previously referred to a......
-
Upper Tribunal (Immigration and asylum chamber), 2014-11-13, IA/47760/2013 & IA/05929/2014
...which is not in accordance with the law for the purpose of Article 8(2) (see SC (Article 8 – in accordance with the law) Zimbabwe [2012] UKUT 00056 (IAC)) In such a case, if it is established that there is a protected private/family life, an Appellant will necessarily succeed on the ground ......
-
Upper Tribunal (Immigration and asylum chamber), 2014-03-17, VA/07369/2013
...to it, I see nothing in what was said in the Upper Tribunal’s decision in SC (Article 8 – in accordance with the law) Zimbabwe [2012] UKUT 00056 (IAC) at [10] as being inconsistent with the Strasbourg case law or its adoption by the House of Lords. There, the Upper Tribunal said: “We recogn......