Ss (zimbabwe) and Others v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Davis,Mr Justice Warren,Lord Justice Pill |
| Judgment Date | 26 March 2013 |
| Neutral Citation | [2013] EWCA Civ 237 |
| Docket Number | Case Nos: C5/2010/2970; C5/2011/1154; C5/2011/2718; C5/2011/3153 |
| Court | Court of Appeal (Civil Division) |
| Date | 26 March 2013 |
[2013] EWCA Civ 237
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Pill
Lord Justice Davis
and
Mr Justice Warren
Case Nos: C5/2010/2970; C5/2011/1154; C5/2011/2718;
C5/2011/3001; C5/2012/0293; C5/2011/2934;
C5/2011/3153
MR ABID MAHMOOD (instructed by Messrs Blakemores) for the First, Third, Fifth, Sixth and Seventh Appellants.
MR ABID MAHMOOD and MS NAZMUN ISMAIL (instructed by Messrs Blakemores) for the Fourth Appellant.
MISS EMMA RUTHERFORD (instructed by Messrs Blakemores) for the Second Appellant.
Mr Colin Thomann (instructed by Treasury Solicitors) For the Respondent.
Hearing dates : 21st and 22nd January 2013
Introduction
These seven appeals all involve citizens of Zimbabwe. All failed in their asylum appeals (and various other grounds of appeal) before the Upper Tribunal. The question raised is as to the correct disposal of each of them in the light of the Supreme Court decision in RT (Zimbabwe) v SSHD [2012] UKSC 38; [2012] 3 WLR 345 decided and reported after the hearings below, in the light of the relevant country guidance. The respondent Secretary of State at the oral hearing before us said that all save one should be remitted to the Upper Tribunal for fresh determination; but that one appeal (that of BC) should be dismissed. The appellants, on the other hand, said that the appeals should be allowed in each case.
A further complicating factor is that in some, although by no means all, of these cases the Tribunal had also relied on the country guidance relating to Zimbabwe enshrined in the Upper Tribunal determination in EM (Zimbabwe) & Ors v SSHD [2011] UKUT 98 (IAC) and which was designed to supersede the previous country guidance given by the Asylum and Immigration Tribunal in RN (Zimbabwe) CG [2008 ] UKAIT 00083. But that determination had been, by consent, quashed by order of the Court of Appeal on 13 June 2012 for procedural reasons; and the matter was remitted to the Upper Tribunal for further determination. There was a lengthy hearing in the Upper Tribunal in October 2012, with voluminous evidence filed, and further written submissions were provided to the Upper Tribunal in November 201At the time of the oral hearing before us it was understood that the tribunal's fresh determination was likely to be promulgated in the near future. (Whether one side or another thereafter would seek to appeal remained to be seen). At all events, the quashing, in the interim, of the determination in EM (Zimbabwe) after the relevant tribunal determination had been a factor, in some of these appeals, in causing the Secretary of State to say that they should be remitted. In the result, the Upper Tribunal promulgated its determination concerning country guidance for Zimbabwe on 31 st January 2013, a few days after the hearing before us and after we had reserved judgment: see CM ( EM country guidance: disclosure) Zimbabwe CG [2013 ] UKUT 00059 (IAC). Further written submissions have been put in by the parties in consequence. There was no request for a further oral hearing.
In the light of this development occurring after the oral hearing, the Secretary of State's position changed to saying that all the appeals should now be dismissed. The appellants maintained that their appeals should be allowed; but in the alternative said that they should now be remitted.
It is a feature of all of these appeals that the appellants were found not to be credible in the version of events they put forward to the tribunal. A further feature of these appeals is the extent to which such findings of want of credibility may impact on what the Secretary of State says is a question of fact common to each appeal: that is, whether it remains necessary for the appellants (if returned to Zimbabwe) to demonstrate loyalty to Zanu-PF to ensure safety from persecution. The Secretary of State says that the findings of lack of credibility do, or may well, impact on the ultimate determination of the asylum claims.
The appellants, on the other hand, say as part of their primary case that in the light of the Supreme Court decision in RT (Zimbabwe) the findings of lack of credibility have no further relevance: each appeal would be bound to succeed and remittal to the Upper Tribunal would be pointless. In the alternative, it is said that in any event it would not be just for this court to order any of these appeals to be remitted. By either route, therefore, it is said that these appeals should be allowed outright.
Before us, all of the appellants save SC were represented by Mr Abid Mahmood. SC was represented by Ms Emma Rutherford. The Secretary of State was represented by Mr Colin Thomann.
RT (Zimbabwe)
In my view, in order properly to explain where the parties are at issue and in order to determine the proper disposal of each of these appeals on their own particular circumstances it is necessary first to consider the ambit and implications of the decision in RT (Zimbabwe).
In that case each of the Zimbabwean claimants had been found (contrary to their protestations in some of the cases) not to hold any political beliefs; but it was also found by the tribunal that they could and would, if necessary, be able to demonstrate loyalty to the regime and therefore there was no real risk that they would be subject to ill-treatment if returned to Zimbabwe.
The core decision of the Supreme Court, applying the principles laid down in HJ (Iran) v SSHD [2010] UKSC 31; [2011 ] 1AC 596, was to the effect that there was no basis for treating differently a person who had no political beliefs, but who, in order to avoid persecution, would be obliged to pretend that he did, from a person who did have active political beliefs and who, in order to avoid persecution, would be obliged to conceal them.
The hearing in RT (Zimbabwe) in fact involved four appeals. The hearing took place only four days after the country guidance decision contained in the Upper Tribunal determination in EM (Zimbabwe) had been quashed in the Court of Appeal. We were told, in fact, by Mr Thomann that counsel appearing for the Secretary of State in the Supreme Court had only learned of the very recent quashing of EM (Zimbabwe) on the first day of the hearing. At all events, it appears that the hearing was conducted on the concession that the cases before the Supreme Court fell to be decided "in the light of the latest country guidance for Zimbabwe" to be found in the Tribunal decision in RN (Zimbabwe): see paragraphs 2 and 3 of the judgment of Lord Dyson. Lord Dyson there drew attention to the finding of the tribunal in that latter case, as expressed in paragraph 216 of the determination, to the effect that those at risk "were not simply those who are seen to be supporters of the MDC [the then principal opposition party] but anyone who cannot demonstrate positive support for Zanu-PF or alignment with the [Mugabe] regime."
In paragraph 14, Lord Dyson cited two reasons given by Pill LJ in the Court of Appeal in one of the appeals then before the Supreme Court, (KM), in directing remittal, by reference to the decision in RN (Zimbabwe):
"First, an applicant found not to have been a witness of truth will not be assumed to be truthful about his inability to demonstrate loyalty: para 246. Secondly, there is recognition, in paras 229 and 230, of categories of people, for example, those returning to more affluent areas and likely to be associated with the regime, who may be returning to a milieu where loyalty to the regime may be assumed and the risk of persecution does not arise."
Aspects of the country guidance given in RN (Zimbabwe), including the prevalence of road blocks, were further summarised in paragraphs 15 and 16 of the judgment of Lord Dyson. Reference was made specifically to paragraph 258 of the determination in RN (Zimbabwe) to the effect that those at risk on return on account of imputed political opinion were no longer restricted to supporters of the MDC but included anyone unable to demonstrate support for or loyalty to the regime of Zanu-PF.
There was then detailed consideration of the decision in HJ (Iran) and other cases. It was concluded that there was no principled basis for treating differently the right to hold and not to hold political beliefs: and that applied as much to the committed political neutral as to one to whom political neutrality was one of indifference. It was also observed that the idea "if you are not with us you are against us" was a feature of dictatorial societies.
As to imputed political beliefs, it was noted by Lord Dyson at paragraph 55 of his judgment that a claim for asylum may succeed if it was shown that there was a real and substantial risk that, despite the fact that the asylum seeker (if returned) would assert support for the regime, he would be disbelieved and his political neutrality — and therefore lack of actual support for the regime — thereby exposed.
At paragraphs 56 to 59 Lord Dyson said this:
"56. The issue that is common to all these cases as regards imputed belief is whether there is a real and substantial risk that the political neutrality of the claimants would be discovered by the militia gangs and War Veterans who man road blocks even if the claimants were to dissemble and say that they support the regime. This raises two...
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