THULANI NDLOVU v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE CHADWICK,Lord Justice Laws,LORD JUSTICE LAWS,LORD SLYNN |
| Judgment Date | 22 July 2004 |
| Neutral Citation | [2004] EWCA Civ 1567 |
| Docket Number | C4/04/0210 |
| Date | 22 July 2004 |
| Court | Court of Appeal (Civil Division) |
[2004] EWCA Civ 1567
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
ADMINISTRATIVE COURT LIST
(IMMIGRATION APPEAL TRIBUNAL)
Royal Courts of Justice
Strand
London, WC2A 2LL
Lord Justice Chadwick
Lord Justice Laws
Lord Slynn of Hadley
C4/04/0210
MR M S GILL QC AND MR E WAHEED (instructed by Messrs Southerns, Nelson, BB9 7JJ) appeared on behalf of the Appellant
MISS JULIE ANDERSON (instructed by Treasury Solicitor, London, SW1H 9JS) Appeared on behalf of the Respondent
I will ask Lord Justice Laws to give the first judgment.
This is an appeal, with leave granted by Keene LJ on 21 May 2004, against the determination of the Immigration Appeal Tribunal promulgated on 16 September 2003 by which it allowed the Secretary of State's appeal against the earlier decision of the adjudicator promulgated on 9 June 2003. The adjudicator had allowed the appellant's appeal on asylum and human rights grounds against the decision of the Secretary of State set out in a decision letter of 30 October 2000 to refuse his asylum claim. By that letter the Secretary of State held also that there was no claim to stay in the United Kingdom on human rights grounds.
The appellant is a national of Zimbabwe. She arrived in the United Kingdom on 23 February 2002 and claimed asylum. Her claim was based on a fear of persecution by the ruling party ZANU-PF. It is most succinctly described in paragraph 2 of the Secretary of State's decision letter as follows:
"You claimed that you left Zimbabwe because of the problems you and your family allegedly experienced with the War Veterans, who are members of the ZANU-PF and Shona tribe, because they wanted to reclaim your land, and with the CIO (Central Intelligence Organisation) on account of your Liberty Party membership. You alleged that on 7 June 2000 the War Veterans came to your family's farm, killed your brother, and beat your mother. You claimed that they threatened her that they would kill her if she did not leave. You contend that they were persecuted because they are Ndebele and also because they were active members of the Liberty Party. You further claimed that the War Veterans returned to the farm on 12 August with the assistance of the CIO whilst you were visiting, and that the CIO threatened your mother that they would kill you if she did not leave. You alleged that the CIO would also want to kill you because you are an active Liberty Party member. You claimed that you left the farm and took your mother to Harare, where you stayed in hiding for three weeks before coming to the United Kingdom."
The Secretary of State doubted the appellant's credibility and refused the claim. The adjudicator allowed her appeal. He accepted that she would be at risk anywhere in Zimbabwe; alternatively it would be extremely harsh to expect her to relocate in any particular place given that she would only be able to obtain food and survive if she joined the Zanu-PF party and obtained a membership document. As I shall show, her mother had moved to a place in Zimbabwe close to the South African border called Beitbridge.
The IAT allowed the Secretary of State's appeal. They referred to various points on the factual merits (see in particular paragraphs 13 and 14) . Then they said:
"15. Then we come to the remaining features of the situation in Beitbridge. Here the adjudicator clearly misunderstood the background evidence as to food sales, which was a cardinal point in his decision that internal flight there would be unduly harsh. Zimbabwe is one of the best-known countries with which the Tribunal has to deal. English is the official language, and there are many contacts with this country. If there were any published or other independent evidence that ordinary tradesmen had been selling food only to party cardholders, we should have expected to see it, especially in the context of a case clearly so professionally and conscientiously prepared on behalf of the claim as this one was.
16. This was a crucial point, in our view, on which the adjudicator went wrong. His decision went out on 9 June. The legal basis of our jurisdiction was not canvassed before us. We are inclined to take the view that the requirement in the present legislation for an error of law is a threshold one, which only falls for consideration on the application for permission to appeal. Whether we are right or wrong about that, we are satisfied that this adjudicator's misunderstanding of the background evidence can be characterised as a clear error, and if necessary one of law. It was entirely understandable, in the absence of a presenting officer, which once again is a regrettable feature of this case, but the adjudicator was clearly wrong. It follows that the Home Office Appeal is allowed."
It is important to make clear that the IAT was only entitled to overturn the adjudicator's decision on a point of law. That is the effect of the Nationality Immigration and Asylum Act 2002, section 101. That provision applies to appeals from adjudicators' determinations promulgated on or after 9 June 2003. The adjudicator's determination in this case was promulgated on that very date. I need not read the statute; all this is common ground. It follows that the IAT were quite wrong to hold in paragraph 16 that "the requirement in the legislation for an error of law was a threshold one, which only falls for consideration on the application for permission to appeal". That is a misconstruction of section 101. That section allows for an appeal on law only. This court held as much only two days ago on 20 July 2004 in a case by name R(On the application of CA) v Secretary of State for the Home Department.
The question in this case is whether the IAT correctly held that the adjudicator perpetrated an error of law. The material passage in the adjudicator's decision, referred to by the IAT at paragraphs 15 and 16, is to be found in paragraph 18 of the adjudicator's determination as follows:
"The Appellant's mother and her cousin have re-located internally within Zimbabwe to Beitbridge, which is close to the border between Zimbabwe and South Africa. The Respondent in the Reasons for Refusal letter contends that the Appellant could have safely relocated internally within Zimbabwe rather than seeking protection as a refugee from the international community. The Appellant in her evidence to me dealt with this issue as did the Appellant's representative in his submissions. Having considered the CIPU Report I reach the conclusion that the situation throughout Zimbabwe is dire, that the ZANU-PF both dominates and controls the whole of Zimbabwe, and as such there is nowhere in Zimbabwe to where the Appellant could relocate in safety. In particular, I canvassed with the appellant as to why she could not relocate to Beitbridge where her mother and cousin have re-located. Pertinently, the Appellant in her evidence told me that the only way that her mother and cousin could buy food in Beitbridge was to join the ZANU-PF, as merchants had been instructed only to sell food to card-carrying members of the ZANU-PF. The Appellant's evidence in this regard is consistent with the background material which documents this government-sanctioned policy of food distribution. In such circumstances, even if it were safe for the Appellant to re-locate to Beitbridge, I find that it would be unduly harsh to expect her to do so. In reaching that conclusion, I have applied the test as approved by the Court of Appeal in the case of Robinson [1997] Imm AR 568, and find that in the circumstances of the Appellant's case it would be unduly harsh to expect her to relocate internally, even if a place of safety did exist in Zimbabwe, which in itself I doubt."
What precisely was the legal error sought to be identified by the tribunal? As I have shown, the IAT asserted that the adjudicator clearly misunderstood the background evidence a to food sales. It seems to me that must depend, in part at least, upon what is said by the IAT at paragraph 7 recording a concession made by the appellant's advocate. The paragraph reads as follows:
"There are known difficulties with aid supplies in Zimbabwe being distributed under Government auspices only, and presumably to those who either were or pretended to be government supporters. This case does not involve supplies of that kind. Mr Rodwell very frankly concedes that there is no background evidence to which he can refer us about difficulties...
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