SM (Zimbabwe) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Leveson |
| Judgment Date | 28 February 2013 |
| Neutral Citation | [2013] EWCA Civ 377 |
| Date | 28 February 2013 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C5/2012/2629 |
[2013] EWCA Civ 377
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)
[APPEAL NO: AA/07948/2008]
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Leveson
Case No: C5/2012/2629
Mr Abid Mahmood (instructed by Blakemores) appeared on behalf of the Applicant
The Respondent did not appear and was not represented
This case has a troubling history. The applicant entered the United Kingdom on 11 August 2004 and was granted leave to enter as a visitor. She overstayed and on 28 July 2008 claimed asylum. That was refused on 18 September 2008. Her appeal was heard on 30 October and dismissed. She applied for reconsideration based upon a recent decision, namely RN (returnees) Zimbabwe CG [2008] UKAIT 83. That application was successful. The re-hearing took place on 10 July 2009. The original tribunal's decision was upheld and the appeal dismissed, but ultimately granted by Sullivan LJ. A further hearing before the Court of Appeal occurred on 13 April, when by consent the appeal was remitted to the Upper Tribunal.
The preserved finding of fact utterly undermines the applicant's credibility. It can be summarised in paragraph 29 of the preserved findings:
"…I do not accept this appellant's family has been involved in the MDC or that she has been persecuted in the past by ZANU-PF supporters. I do not accept that she has been threatened in the way described or that she left the country in fear. She entered the country after making false declarations on her visa application forms as to the purpose of her visit and addresses in Zimbabwe. I do not accept that she has sought to regulate status when in the United Kingdom."
In the event, the upshot of the hearing was that the appeal was successful on human rights grounds based upon the birth to the applicant of a child to a fellow Zimbabwean national who has settled status in this country.
The claim based upon asylum was rejected. Seeking to appeal that decision, the Upper Tribunal dealt with the argument that the tribunal had failed to deal with the judgment of the Supreme Court in RT (Zimbabwe) & Ors v SSHD [2012] UKSC 38, [2012] 3 WLR 345, which had been handed down after the hearing but before the promulgation of the decision. In fact, the appeal was served on 12 June 2012 and sent for promulgation on 27 July. RT was handed down on 25 July.
The Upper Tribunal refused permission to appeal to the Court of Appeal in these terms:
"It was found that the appellant is able to pass through the airport and faced no real risk thereafter. In any event paragraphs 39 to 41 analyse the case in a manner in accordance...
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SM (Zimbabwe) v Secretary of State for the Home Department
...conclusion in the decision of the Court of Appeal in the linked appeals SS (Zimbabwe) the Secretary of State for the Home Department [2013] EWCA Civ 377. On 26 March the decision of the Court of Appeal was handed down: see [2013] EWCA Civ 237, and one might have thought that it would be po......