TC (PS Compliance — “Issues-Based” Reasoning) Zimbabwe

JurisdictionUK Non-devolved
JudgeDove J,Plimmer UTJ
Judgment Date13 June 2023
Neutral Citation[2023] UKUT 164 (IAC)
CourtUpper Tribunal (Immigration and Asylum Chamber)
TC (PS Compliance — “Issues-Based” Reasoning) Zimbabwe

Dove J (President of the UT) and Plimmer UTJ (President of the FtT)

UPPER TRIBUNAL (IMMIGRATION AND ASYLUM CHAMBER)

Asylum — cessation clause — inadequate reasons — human rights — Article 3 of the ECHR — mental health cases — procedure and process — conduct of appeal — guidance — reformed appeal procedure — practice statement compliance — appeal skeleton argument and review — First-tier Tribunal decisions — “issues-based” reasoning — permission to appeal decisions — deportation — danger to the community — application of “unduly harsh” test

The Claimant, a citizen of Zimbabwe, came to the United Kingdom in 2014 when he was 14. He was granted refugee status ‘in line’ with his mother who had been recognised as a refugee as she had been a member of the opposition party, the MDC. He began a relationship with his current partner in March 2018. They had a son in February 2021. In May 2018 the Claimant was convicted of kidnapping and actual bodily harm, for which he received concurrent sentences of imprisonment of 42 months and 18 months respectively. Prior to that, he had received three cautions and had been convicted of dangerous driving and possession of a Class B drug.

In July 2022, the Secretary of State for the Home Department certified that the Claimant had not rebutted the presumption under section 72 of the Nationality, Immigration and Asylum Act 2002 (‘the 2002 Act’) that he constituted a danger to the community; revoked his refugee status on the ground that he was no longer dependent upon his mother and the circumstances in connection with which he had been recognised as a refugee had ceased to exist; concluded that his medical condition did not meet the severity threshold to engage Article 3 ECHR; concluded that he was not socially and culturally integrated in the United Kingdom and there would not be very significant obstacles to his integration in Zimbabwe; and concluded that his deportation would not breach Article 8 ECHR as the effect on his partner or child would not be unduly harsh. The Claimant appealed to the First—tier Tribunal (‘FtT’).

The Claimant's representatives provided an appeal skeleton argument (‘ASA’) in September 2022, which complied with the requirements of Practice Statement No 1 of2022 (‘the PS’) and included a schedule of disputed issues. The ASA also referred to additional evidence in the Claimant's bundle regarding his mental health. The evidence included three reports from mental health professionals involved in the Claimant's care. The Claimant had symptoms of PTSD and bipolar affective disorder with psychotic features as a result of a traumatic childhood in Zimbabwe during which he had been forced to work as a child soldier. He had been sectioned on two occasions. When unwell he presented with behaviours including serious violence to others and aggression. He took antipsychotic medication and needed considerable support in the community for his mental health. The reports opined that he would be at a high risk of a serious psychosis relapse if deported. An OASys assessment placed him at a low risk of offending and a medium risk to the public. The Secretary of State provided a review, as required by the PS, which agreed with the ASA's formulation of the issues in dispute but did not engage with the issues raised by the evidence of the Claimant's mental ill-health.

The FtT allowed the Claimant's appeal. The Secretary of State appealed to the Upper Tribunal (‘UT’) on five grounds. First, the FtT had not provided adequate reasons in support of the conclusion that the Claimant had displaced the presumption that he was a danger to the community; secondly, the FtT had not given adequate reasons for concluding that the Claimant's refugee status should not cease; thirdly, the Claimant had not met the high Article 3 ECHR threshold regarding mental health cases; fourthly, the FtT had erred in law in concluding that there would be very significant obstacles to the Claimant's integration in Zimbabwe; and finally, the FtT had not applied the unduly harsh test to the facts and circumstances of the case.

Held, allowing the appeal in part:

(1) The PS emphasised the requirement on the part of both parties in the FtT to identify the issues in dispute and to focus on addressing the evidence and law relevant to those issues in a particularised yet concise manner. That was consistent with one of the main objectives of reform and a modem application of the overriding objective pursuant to rale 2 of the Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014. It ensured that there was an efficient and effective hearing, proportionate to the real issues in dispute. A PS—compliant and focussed ASA often led to a more focussed review, and in turn to a focussed and structured FtT decision on the issues in dispute. Reviews were pivotal to reform in the FtT. The PS made it clear that they must be meaningful and that pro-forma or standardised responses would be rejected. They provided the Secretary of State with an important opportunity to review the relevant up to date evidence associated with the principal important controversial issues. It was to be expected that the FtT would be astute to ensure that the parties complied with the mandatory requirements of the PS, including the substantive contents of ASAs and reviews (paras 16 – 17).

(2) The identification of the principal important controversial issues would lead to the kind of focussed and effective FtT decision required, addressing those matters, and only those matters, which needed to be decided and concentrating on the material bearing upon those issues. The procedural architecture in the FtT, including the PS under the reformed process, was specifically designed to enable those principal important controversial issues to be identified and for the parties' preparation, as well as the hearing, to focus upon them. FtT decisions should begin by setting out the issues in dispute. That was clearly the proper approach to appeals under the online reform procedure where at each major stage there was a requirement to condense the parties' positions in a clear, coherent and concise ‘issues-based’ manner (paras 25 – 26 and 60 – 61).

(3) The need for procedural rigour at every stage of the proceedings applied with equal force when permission to appeal to the UT was sought and in the UT proceedings, including a focus on the principal important controversial issues in the appeal and compliance with directions. The requisite clear, coherent and concise ‘issues-based’ approach continued when a judge considered whether to grant permission to appeal. That meant that the judge should consider whether a point relied upon within the grounds of appeal was raised for consideration as an issue in the appeal. The reasons for the permission to appeal decision needed to focus upon, in a laser-like fashion, those grounds which were arguable and those which were not. To secure procedural rigour in the UT and the efficient and effective use of Tribunal and party time in resolving the issues that were raised, it was necessary for the grant of permission clearly to set the agenda for the litigation for the future (paras 62 – 65).

(4) The FtT's reasoning was inadequate for the conclusion that the Claimant was not a danger to the community, given the nature and extent of the evidence available. The reasons failed to explain how the evidence in support of the Secretary of State's case had been brought into account so that she could understand why the Claimant had succeeded before the FtT on that issue. The FtT presented an exclusively positive view of the evidence on risk and failed to explain how matters undermining the Claimant's case were resolved. Ground one succeeded (paras 28 – 34).

(5) When considering the cessation of the grant of refugee status, the FtT had not engaged with the specific circumstances of the Claimant's mother which had led to his refugee status. MDC members were considered in general not to be at risk in high density areas of Harare unless they had a significant MDC profile: CM (EM country guidance; disclosure) Zimbabwe CG [2013] UKUT 59 (IAC) applied. The FtT did not address the proposed area of return and/or the significance of the mother's profile, as required by CM and the country policy and information notes on Zimbabwe: PS (cessation principles) Zimbabwe[2021] UKUT 283 (IAC) considered. Ground two succeeded (paras 35 – 40).

(6) The FtT's conclusions on Article 3 ECHR were adequately based upon the evidence before it, including the Claimant's dependence upon medication and mental health community support in the United Kingdom, which would be absent in Zimbabwe, and the professionals' consistent assessment of the likely impact of deportation to Zimbabwe upon the Claimant. The FtT had properly directed itself to and applied the correct burden of proof and was entitled to conclude that the Claimant had displaced the burden on him to adduce evidence capable of establishing a prima facie Article 3 case. The Secretary of State's review manifestly demonstrated that she had not raised any particularised concerns about the Claimant's case on that issue. Ground three failed. Accordingly, the Secretary of State's submission in ground four that there would not be very significant obstacles to the Claimant's integration in Zimbabwe fell away (paras 41 – 57).

(7) Whilst the FtT set out section 117C of the 2002 Act, there was no indication within the decision that there was a self-direction to the elevated standard required by the ‘unduly harsh’ concept: HA (Iraq) v Secretary of State for the Home Department[2022] UKSC 22 and Sicwebu v Secretary of State for the Home Department[2023] EWCA Civ 550 applied. It had not applied the unduly harsh test to the facts and circumstances of the case and had failed to give adequate reasons why the effect of deportation...

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