The Secretary of State for the Home Department v MM (Zimbabwe)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Sales,Lord Justice Henderson,Lady Justice Black |
| Judgment Date | 22 June 2017 |
| Neutral Citation | [2017] EWCA Civ 797 |
| Docket Number | Case No: C5/2016/0129 |
| Court | Court of Appeal (Civil Division) |
| Date | 22 June 2017 |
[2017] EWCA Civ 797
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL (IMMIGRATION AND ASYLUM CHAMBER)
RP/00021/2015
Royal Courts of Justice
Strand, London, WC2A 2LL
Lady Justice Black
Lord Justice Sales
and
Lord Justice Henderson
Case No: C5/2016/0129
Alan Payne (instructed by The Government Legal Department) for the Appellant
Alasdair Mackenzie (instructed by TRP Solicitors) for the Respondent
Hearing date: 17 May 2017
Approved Judgment
This is an appeal by the Secretary of State in a case involving a foreign criminal, MM, whom the Secretary of State wishes to deport. By a decision promulgated on 15 July 2015 the First-tier Tribunal ("FTT") upheld an appeal by MM against his deportation. By a decision promulgated on 16 November 2016 the Upper Tribunal dismissed the Secretary of State's appeal. The Secretary of State now appeals to this court with permission granted by Rafferty LJ.
MM is a citizen of Zimbabwe, born in 1980. He arrived in the United Kingdom in August 2002 and was granted indefinite leave to remain as a refugee on the ground that he faced persecution in Zimbabwe by the ruling ZANU-PF regime as a result of his activities in support of the Movement for Democratic Change ("MDC") opposition party. MM claimed that he organised campaigns and rallies, distributed leaflets, canvassed for new members and overall was very active as a MDC member, although in his asylum interview he said he did not have a high position. According to MM, he was detained without charge for 14 months by reason of his activities, and then released. During his detention, he was beaten. As the Secretary of State accepted his claim for asylum, it was not necessary for a tribunal to make any findings of fact about his case. It appears that MM has not continued with his political activities since he has been in the United Kingdom. Certain of MM's sisters were also granted asylum here by reason of their involvement with the MDC.
MM has severe mental health problems. He suffers from schizophrenia (schizoaffective disorder). In about 2004 he was placed in an open adult mental health ward in Nottingham. However, he absconded and went to stay at his sister's house in Liverpool. On 5 June 2004 MM was babysitting his three year old niece when he conducted a serious assault upon her. He claimed that this was because he heard voices. After the assault he called the police.
On 20 August 2004 MM was convicted of one count of attempted rape in relation to his niece and three counts of sexual assault upon her. On 10 January 2005 MM was sentenced to a hospital order under sections 37 and 41 of the Mental Health Act 1983 and was required to sign the sex offender register indefinitely.
On 12 April 2012 MM was granted a conditional discharge from detention by a Mental Health Tribunal. He remains liable to recall should he fail to comply with the conditions of his discharge. The medical reports in relation to MM indicate that his schizophrenia has responded well to the drugs he has been prescribed and is currently under control. In particular, his schizophrenia has been effectively controlled by a drug called clozapine. It appears that he has been compliant with this medicines regime. While he takes the prescribed drugs, his risk to the public is assessed to be low.
On 13 June 2013 the Secretary of State wrote to MM to indicate that she was minded to make a deportation order to remove him from the United Kingdom and inviting him to make representations, which MM duly did. In addition, on 29 April 2014 and 20 June 2014 the Secretary of State wrote to MM to indicate that she intended to make a decision pursuant to Article 1C(5) of the 1951 Refugee Convention and para. 339A(v) of the Immigration Rules to cease recognition of MM as a refugee on the grounds that circumstances had improved in Zimbabwe so that he no longer faced a real risk of ill-treatment if returned there, and inviting him to make representations, which again he duly did.
By a decision letter dated 17 April 2015 the Secretary of State set out her decision to refuse MM's protection and human rights claim made in opposition to his proposed deportation to Zimbabwe and also her decision to cease treating him as a refugee for the purposes of the Refugee Convention. In relation to both decisions an important part of the Secretary of State's reasoning was that conditions had improved in Zimbabwe since 2002, as reviewed in the latest country guidance case of CM (EM country guidance; disclosure) Zimbabwe CG [2013] UKUT 59 (IAC) and supported by subsequent information, such that the return to Zimbabwe of a person "having no significant MDC profile" would not give rise to a real risk of ill-treatment of that person. The Secretary of State also considered that MM was not a person who had any significant political or MDC profile currently, noting in that regard that he had not been involved in politics or been a MDC activist during the 12 year period he had been in the United Kingdom. For these reasons, in the Secretary of State's view MM would not be at any real risk of ill-treatment upon return to Zimbabwe; she was entitled to cease treating him as a refugee for the purposes of the Refugee Convention; and there would be no violation of his rights under Articles 2 and 3 of the European Convention on Human Rights ("ECHR") (the right to life and the right not to be "subjected to torture or to inhuman or degrading treatment or punishment", respectively) on grounds of risk of ill-treatment by the authorities if he was deported there. The Secretary of State also considered that there would be sufficient medical assistance available to MM in Zimbabwe to control his schizophrenia, so that again his return there would not violate his rights under Articles 2 and 3 of the ECHR on medical grounds. A further reason was given why MM could be deported even if he remained a refugee for the purposes of the Refugee Convention, namely that he had been convicted of a serious crime and was therefore presumed to represent a danger to the community of the United Kingdom (see section 72 of the Nationality, Immigration and Asylum Act 2002), so that under the regime for humanitarian protection under the Refugee Convention the United Kingdom was entitled to deport him to Zimbabwe pursuant to Article 33(2) of the Refugee Convention and relevant provisions of the Qualification Directive (EU Council Directive 2004/83/EC of 29 April 2004). The Secretary of State also rejected a claim that MM would face a real risk of ill-treatment in Zimbabwe on the grounds of what he claimed was his bi-sexuality and a further claim that his deportation would constitute a violation of his rights under Article 8 of the ECHR (right to respect for private and family life).
MM appealed to the FTT. The FTT allowed his appeal on asylum and human rights grounds. The FTT held: (i) the Secretary of State had failed to establish that MM would not face a real risk of ill-treatment upon return to Zimbabwe, so she could not cease to treat him as a refugee for the purposes of the Refugee Convention and in addition his deportation there would violate his rights under Articles 2 and 3 of the ECHR; (ii) MM had rebutted the presumption under section 72 of the 2002 Act that he was a danger to the community in the United Kingdom, despite the gravity of his offences, because of the medical evidence that MM's mental illness was in full remission while he continued with his treatment regime in the United Kingdom, with the result that he continued to enjoy protection against deportation to Zimbabwe under Article 33 of the Refugee Convention; (iii) MM did not have a valid claim against deportation under Article 3 of the ECHR on the basis of risk to his mental health if removed to Zimbabwe, even though the FTT found that he would not be able to pay for the drugs he needed to control his severe mental illness and hence "would not, realistically, be able to access the health care that he needs", on the grounds of the high threshold applicable for an Article 3 claim which the FTT took to be that he had to show that he was "at the point of death" ([39]); (iv) he was disbelieved on his evidence about his bi-sexuality, and failed to make out his case that he would suffer a risk of ill-treatment in Zimbabwe by reason of it; and (v) there were very compelling circumstances which would mean that MM's deportation would violate his rights under Article 8 of the ECHR notwithstanding the strong public interest in his deportation as a foreign criminal under section 117C of the 2002 Act, because of the severe impact on MM's mental health if he were deprived of his regular treatment, resulting in a risk not just to himself but also to others: "I find that if [MM] were returned to Zimbabwe there is a substantial risk that he would again find himself unable to resist the instructions from voices in his head to harm another person or persons" ([44]).
For present purposes the important part of the FTT's judgment in relation to point (i) is at paras. [27]–[28]:
"27. There have been no detailed findings of fact about the extent of [MM's] involvement in the MDC. I have seen his asylum interview in which he states that he was an active member. That evidence was clearly accepted by [the Secretary of State] in 2002 as his asylum claim was granted and there was no need for the matter to go to appeal and have findings of fact made. Although [MM] does not assert that he has been involved in political activity in the UK, I find that [the Secretary of State] has not produced evidence to substantiate her assertion that [MM] has no political or MDC profile. There is insufficient evidence for me to make findings about the level of his MDC...
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