TM (Zimbabwe) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Elias,Lord Justice Rix,Lord Justice Ward,Lord Justice Longmore |
| Judgment Date | 15 September 2010 |
| Neutral Citation | [2010] EWCA Civ 1154,[2010] EWCA Civ 916 |
| Date | 15 September 2010 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C5/2010/0431,Case No: C5/2009/2216, C5/2009/2097, C5/2009/2242 |
[2010] EWCA Civ 1154
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ASYLUM & IMMIGRATION TRIBUNAL
Before: Lord Justice Longmore
Case No: C5/2010/0431
[AIT No: AA/03810/2009]
Ms Charlotte Bayati (instructed by Thakrar & Co) appeared on behalf of the Appellant
THE RESPONDENT DID NOT APPEAR AND WAS NOT REPRESENTED
Lord Justice Longmore:
This is an application for permission to appeal by an applicant, to whom I will refer as TM.
She was born in 1977 in Zimbabwe. In November 2001 she entered the United Kingdom as a visitor and thereafter applied for variation of leave to remain as a student. That leave to remain was granted and extended until 14 August 2006, when further leave to remain was refused. The applicant then appears to have gone underground and nothing happened for two and a half years, but on 12 February 2009 she claimed asylum on the basis that she had been married to an officer in the Zimbabwe army who had deserted and had fled thereafter to Malawi and went on to South Africa. Her application for asylum was originally dismissed on 4 June 2009, but there was an order that that be reconsidered and the matter came before Immigration Judge Tootell, who made his determination on 17 November 2009. The Immigration Judge went into the matter in very considerable detail, and as Stanley Burnton LJ observed in refusing on paper, it was a careful and full consideration of the issues. Immigration Judge Tootell had no faith in the applicant's credibility; he dismissed her account of what had happened to her husband, and as Stanley Burnton LJ said, not only were adequate but indeed cogent reasons given for rejecting the applicant's credibility.
The applicant now seeks permission, after Senior Immigration Judge Eshun refused permission, for an appeal to this court. It is said by Miss Bayati on her behalf that a question of law arises because the Immigration Judge failed to say that she had taken into account the fact that there was a photograph of the applicant's husband in army uniform, which showed that he was her husband because there are also photographs taken at the wedding.
It does not seem to me that that has a remote chance of success in this court. There is no point of law arising on the Immigration Judge's determination; matters of credibility are always matters of fact, and this court would not interfere. Miss Bayati, however, has a quite discrete point to which she has been alerted by the office, that relates to the decision in relation to Zimbabwe of RN, in which it was held by the Asylum and Immigration Tribunal that deportations of asylum seekers to Zimbabwe could proceed, provided that the applicants were able on return to demonstrate loyalty to the regime. No point has been taken on behalf of this applicant of any antipathy to the regime, but what is said is that, in the light of HJ (Iran), someone who is apolitical will have to, in order to avoid persecution, lie to the Zimbabwean authorities in saying that they support the regime, when that might not either have been or be the case. In the light of HJ (Iran), Sir Richard Buxton has given permission to appeal in four linked cases in order that that argument can be fully ventilated in this court.
In those circumstances, it seems to me that I ought to give leave on this new point, which is set out by way of an additional ground of appeal in a two-page document; and if other cases are raising that point, that would mean that Miss Bayati gets permission to appeal on the additional ground alone, but I refuse it on the grounds which she originally maintained.
I will order that the further proceedings of the appeal be stayed pending the determination of AM, RT, SM and DM, which I am told are listed for hearing on 20 October, and it will be for the Lord Justice in charge of immigration appeals to determine how the matter should proceed thereafter.
Order: Application granted.
[2010] EWCA Civ 916
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ASYLUM AND IMMIGRATION TRIBUNAL
Before: Lord Justice Ward
Lord Justice Rix
and
Lord Justice Elias
Case No: C5/2009/2216, C5/2009/2097, C5/2009/2242
AA/09252/2008, AA/04224/2008 & AA/06966/2008
Mr Ian Dove QC and Mr Abid Mahmood (instructed by Messrs Blakemores) for the Appellants
Mr Steven Kovats QC (instructed by Treasury Solicitors) for the Respondent
Hearing date: 15 July 2010
Lord Justice Elias:
This judgment relates to three joined appeals against decisions of the Asylum and Immigration Tribunal (AIT). In each the appellant is a national of Zimbabwe who unsuccessfully sought asylum from the Secretary of State and whose subsequent appeal to the AIT failed. In each the principal ground of appeal is whether on the facts accepted by the AIT it was open to them to reject that appeal, having regard to the Country Guidance authority of RN [2008] UKAIT 00083. These appeals also raise the question of the potential significance of sur place activity when assessing risk on return.
In fact in the case of LZ the Secretary of State has raised a jurisdictional point which I consider is correct and is a complete answer to this appeal. I will deal separately with that case at the end of this judgment. Suffice it to say that in view of that conclusion I have not gone into the merits of that appeal.
The relevant law.
These appeals have raised a number of legal issues whose scope and application have been the subject of some dispute. I will consider these before turning to the individual cases.
The basic legal principles are not controversial. First, the question the AIT has to ask is whether there is a real and substantial risk of persecution on return: see R v Secretary of State for the Home Department ex parte Sivakumaran [1988] 1 AC 958, 996 per Lord Keith of Kinkel. Second, the persecution must be for a Convention reason. This covers political opinions, including those imputed to the asylum seeker, even if he does not in fact hold them. It is not disputed in these cases that if there is a real risk and substantial risk of persecution, it will be by reason of political opinion. Third, the question for this court in these appeals is whether the AIT erred in law in concluding that there was no such risk. There is no appeal against findings of fact. Fourth, this court must approach with caution the decisions of an expert tribunal like the AIT and not readily assume that they have misdirected themselves in law: see the observations of Lord Hope, Baroness Hale of Richmond and Lord Brown of Eaton-under-Heywood in AH (Sudan) v Home Secretary [2008] 1 AC 678 at paras 19, 30 and 43 respectively. Of particular relevance to the submissions in these cases are the following observations of Baroness Hale:
“…[The specialist tribunals] and they alone are the judges of the facts. It is not enough that their decision on those facts may seem harsh to people who have not heard and read the evidence and arguments which they have heard and read. Their decisions should be respected unless it is quite clear that they have misdirected themselves in law. Appellate courts should not rush to find such misdirections simply because they might have reached a different conclusion on the facts or expressed themselves differently.”
In general findings of fact in one case will not bind any subsequent tribunal. However, this principle is modified in one important respect. The AIT must treat as binding any country guidance authority relevant to the issues in dispute unless there is good reason for not doing so, such as fresh evidence which casts doubt upon its conclusions, and a failure to follow the country guidance without good reason is likely to involve an error of law. This is made plain by the following paragraphs of the Practice Direction: Immigration and Asylum Chambers of the First-tier and Upper Tribunal 2010 (which replace materially identical provisions in the earlier PD issued in 2007):
“12.2. A reported determination of the Tribunal, the AIT or the IAT bearing the letters “CG” shall be treated as an authoritative finding on the country guidance issue identified in the determination, based upon the evidence before the members of the Tribunal, the AIT or the IAT that determine the appeal. As a result, unless it has been expressly superseded or replaced by any later “CG” determination, or is inconsistent with other authority that is binding on the Tribunal, such a country guidance case is authoritative in any subsequent appeal, so far as that appeal:—
(a) relates to the country guidance issue in question; and
(b) depends upon the same or similar evidence.
12.4. Because of the principle that like cases should be treated in like manner, any failure to follow a clear, apparently applicable country guidance case or to show why it does not apply to the case in question is likely to be regarded as grounds for appeal on a point of law.”
The Court of Appeal has endorsed this approach, having approved the earlier version of these paragraphs in R (Iran) v Secretary of State for the Home Department [2005] EWCA Civ 982 per Brooke LJ at paragraph 27.
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