Upper Tribunal (Immigration and asylum chamber), 2014-01-13, AA/00879/2010
| Jurisdiction | UK Non-devolved |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Date | 13 January 2014 |
| Published date | 04 February 2014 |
| Status | Unreported |
| Appeal Number | AA/00879/2010 |
Appeal Number: AA/00879/2010
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/00879/2010
THE IMMIGRATION ACTS
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Heard at Field House |
Determination Promulgated |
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On 14 – 21 October 2013 |
On 13 January 2014 |
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………………………………… |
Before
UPPER TRIBUNAL JUDGE JORDAN
UPPER TRIBUNAL JUDGE DAWSON
Between
The Secretary of State for the Home Department
Appellant
and
JK
Respondent
Representation:
For the Appellant: Ms J. Isherwood, Home Office Presenting Officer
For the Respondent: Mr J. Howard, Fountain Solicitors
DETERMINATION AND REASONS
Introduction and immigration history
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The Secretary of State appeals against the decision of First-tier Tribunal Judge T. Jones following a hearing before him on 16 February 2010. For the sake of continuity, we shall refer to JK as the appellant as he was before the First-tier Tribunal and the Court of Appeal.
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This is one of seven appellants whose appeals were remitted by the Court of Appeal in its decision SS & Ors (Zimbabwe) SSHD [2013] EWCA Civ 237. One of the six appellants (SC) has been granted leave to remain by the Secretary of State. We heard the appeals by the remaining appellants on dates between 14 and 21 October as directed by the Court of Appeal. Ms Isherwood represented the respondent and Mr Howard the appellants in each case. We heard generic submissions from the representatives on the current situation in Zimbabwe in the light of the further country guidance decision by the Upper Tribunal in CM (EM country guidance, disclosure) Zimbabwe CG [2013] UKUT 00059 (IAC) approving the earlier country guidance decision in EM (Zimbabwe) & Ors v SSHD [2011] UKUT 98 (IAC) and specific submissions in each case at the conclusion of all the evidence.
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We have made separate determinations for each appellant. Our analysis of the case law is of application to all six appeals and is therefore reproduced without amendment in each determination, save where the specific circumstances of an appellant require additional consideration.
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The appellant is a citizen of Zimbabwe who was born on 13 December 1973. He married S.E.K. in a traditional ceremony in Zimbabwe in 1998. They have three children. A son, P, was born in Zimbabwe on 29 October 1998. The appellant's wife entered the United Kingdom as a student in 2000, travelling alone. The appellant travelled to South Africa in January 2002, claiming that he left as a refugee, having earlier left their son with his mother-in-law in Bulawayo. He arrived in the United Kingdom with P where he was lawfully permitted to enter as a dependant of his wife or, in his own right, as a student. His leave to remain continued until 30 November 2007.
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Since the appellant's arrival in the United Kingdom the couple were married in a civil ceremony in June 2004. K was born on 27 June 2006. Their third child was born after the appellant's appeal had been determined. Both younger children were born in the United Kingdom.
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The appellant did not claim asylum until 23 November 2009, by which time he had been in the United Kingdom for nearly 8 years. His application was refused although he was granted discretionary leave to remain in the United Kingdom until 22 December 2012. No decision to remove him has been made. This is a s. 83 ‘up-grade’ appeal.
The determination of Judge Jones
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The determination of the appellant’s appeal heard by Judge Jones followed a hearing in Bradford on 16 February 2010. In his determination, the Judge rejected the appellant’s claims to have been a member of the MDC in Zimbabwe or to have been detained and ill-treated as he claimed. He rejected the evidence that the appellant had attended meetings in the United Kingdom (in relation to which he could not recall the location) and his presence at vigils outside the Zimbabwe High Commission since 2003 as an attempt "to embolden his claim in relation to MDC affiliation in the United Kingdom". He rejected the evidence of a MDC membership card as materially assisting his claim as it had been completed after the event with the relevant ticks and initials completed at what appeared to be the same time and by the same hand. He placed little or no weight upon other written material from the MDC in the United Kingdom. However, he allowed the appeal for the following reasons set out in paragraph 27 of the determination:
However, the appellant's claim bearing in mind the Country Guidance decision in RN (Zimbabwe) [2008] UKAIT 00083 is such that in respect of the appellant's claim highlighted within his first statement that he would be unable to show support for the present regime is something that I find is well made out, applying the appropriate standard, on the basis of imputed political opinion. I find that he has a well founded fear of persecution and a real risk of his protected rights being breached at this time if he were returned to his home country in light of this authority. It is clear that he has not voted in any of the more recent elections, that he has been in the United Kingdom for a significant period of time, and if returned doubtless would be noted as having made an unsuccessful claim which are in themselves capable of giving an enhanced risk on return. If challenged on return to his home area, or even indeed if travelling if challenged, he would be unable to demonstrate any support for the present regime, and be completely unaware of campaign slogans or songs. As such, determining this appeal, I note reference therein to RN as regards paragraphs 231, 234 and 259 and the objective material supplied on behalf on the appellant.
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The reference to paragraphs 231, 234 and 259 of the decision in RN was to incorporate the following reasoning in the determination:
231. But, apart from in those circumstances, having made an unsuccessful asylum claim in the United Kingdom will make it very difficult for the returnee to demonstrate the loyalty to the regime and the ruling party necessary to avoid the risk of serious harm at the hands of the War Veterans or militias that are likely to be encountered either on the way to the home area or after having returned there. This is because, even if such a person is not returning to one of the areas where risk arises simply from being resident there, he will be unable to demonstrate that he voted for Zanu-PF and so he may be assumed to be a supporter of the opposition, that being sufficient to give rise to a real risk of being subjected to ill-treatment such as to infringe article 3.
234. For these reasons, a person not able to demonstrate loyalty to Zanu-PF or with the regime in some form or other will be at real risk having returned to Zimbabwe from the United Kingdom having made an unsuccessful asylum claim. That will be regardless of the mechanics of his return. Those with whom he would have to deal in his home area or other place of relocation would be concerned, once he had failed to demonstrate any links with Zanu-PF, not with the method by which he had been returned from the United Kingdom but simply with the fact that his having made an asylum claim here demonstrated him to be a disloyal person who had not supported the party in the elections and as a potential supporter of the MDC.
259. The fact of having lived in the United Kingdom for a significant period of time and of having made an unsuccessful asylum claim are both matters capable of giving rise to an enhanced risk because, subject to what we have said at paragraph 242 to 246 above, such a person is in general reasonably likely to be assumed to be a supporter of the MDC and so, therefore, someone who is unlikely to vote for or support the ruling party, unless he is able to demonstrate the loyalty to Zanu-PF or other alignment with the regime that would negate such an assumption.
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First-tier Tribunal Judge Kelly, sitting as a Deputy Upper Tribunal Judge, allowed the Secretary of State’s appeal to the Upper Tribunal as disclosing an error of law but he did so with considerable hesitation and remarking that "the judge should not therefore a reproach himself for what I have ultimately concluded was an error of law." In finding this error, Judge Kelly relied upon paragraphs 246 and 230 in RN (in that order):
246. So, this will be a question of fact to be resolved in each case. This may come down to a simple assessment of credibility. But immigration judges are well accustomed to making such judgements. An appellant who has been found not to be a witness of truth in respect of the factual basis of his claim will not be assumed to be truthful about his inability to demonstrate loyalty to the regime simply because he asserts that. The burden remains on the appellant throughout to establish the facts upon which he seeks to rely.
230. It remains the position, in our judgement, that a person returning to his home area from the...
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