Upper Tribunal (Immigration and asylum chamber), 2014-01-13, AA/12451/2010
| Jurisdiction | UK Non-devolved |
| Date | 13 January 2014 |
| Published date | 12 June 2017 |
| Hearing Date | 21 October 2013 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Status | Unreported |
| Appeal Number | AA/12451/2010 |
Appeal Number: AA/12451/2010
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/12451/2010
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
PN
Appellant
and
The Secretary Of State For The Home Department
Respondent
Representation:
For the Appellant: Mr J. Howard, Fountain Solicitors
For the Respondent: Ms J. Isherwood, Home Office Presenting Officer
DETERMINATION AND REASONS
Introduction
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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.
The appellant’s claim
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The appellant is a citizen of Zimbabwe who was born on [ ] 1986. The appellant was born in Bulawayo and, during the period she lived in Zimbabwe, never lived anywhere else. In accordance with the answer she gave in her asylum interview, she was not politically active in Zimbabwe and had never been arrested or detained there. She claimed, however, that her grandfather was involved in politics and she thought he was a member of the MDC. He died in 1996, 17 years ago when the appellant was 10 years old. She was not sure in what way her grandfather was involved politically. She thought he had been attacked but could not be certain that either he or other members of the family were members of the MDC. She spoke generally of the violence in her home area, attributing the cause to members of the ZANU-PF; however, in the answers she provided in interview, there could be no viable claim that the appellant herself was at risk from targeted political violence because the appellant was too imprecise in describing events in Zimbabwe. Indeed it is, perhaps, a mark of her own inability to distinguish between those responsible for the violence that, in answer to question 87 of her interview, when asked whom she feared in Zimbabwe, she replied:
“The MDC people. You cannot see who is an MDC person. Everyone, even the police are involved. Nothing is done if you go to the police about attacks.”
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The appellant attributes this answer to simple mistake. It may be that she was confused but such confusion cannot have arisen in the mind of a person who was intimately related or committed to politics in Zimbabwe. At worst, it was the answer of someone who had forgotten her account. At best, it was the answer of a person whose understanding of politics was so limited as to confuse the ZANU-PF with the MDC.
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The appellant claimed that her mother left Zimbabwe travelling to the United Kingdom in 2000. She claimed that some months later, a group of men came to the house, beat her grandmother and raped her aunt and the appellant herself. Shortly thereafter, the appellant left Zimbabwe in 2003. It appears that she entered the United Kingdom on 20 June 2003 using a South African passport although the appellant herself apparently disputed that stating that she used an emergency travel document obtained on her behalf by her aunt in Zimbabwe. The appellant's grandmother came to the United Kingdom to receive treatment for cancer in 2001 but, on her return to Zimbabwe, she passed away.
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The appellant claimed that, as a result of the attack upon her, she became pregnant.
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On arrival in the United Kingdom, the appellant lived with her mother and with her aunt, [P], and her two children, P1 and P2. Both her aunt and her sons, she claimed, had been granted asylum in the United Kingdom. Unfortunately, the appellant's mother died in 2012.
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The appellant was arrested in the United Kingdom arising from steps taken by her to obtain employment using false particulars and documents. No earlier efforts had been made to regularise her stay and, even on her own account, her original entry had only been secured as a visitor. She was arrested on 15 February 2010 at her place of work and was served with an IS151A as an overstayer. It was only at this point, nearly 7 years after her arrival, that she claimed asylum. In due course, she appeared before the Crown Court where she was convicted and sentenced to 100 hours community service.
The determination of Judge Iqbal
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The decision was made on 24 August 2010 refusing to vary her leave to remain in the United Kingdom, following the refusal of her claim for asylum. Her appeal came before Judge Iqbal whose determination was promulgated on 21 October 2010. In it, the Secretary of State conceded the appellant's nationality as Zimbabwean. At the time of the hearing, the appellant was in a relationship with T, a son of one of the other appellants in this series of appeals, SM. It was this son whom we described as being a member of the British Armed Forces. Although the relationship had broken down sometime before the hearing before us, SM accompanied the appellant at the hearing in October 2013, although his own appeal had been heard on a different occasion.
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Judge Iqbal had before her the determination promulgated on 25 January 2005 in relation to the appellant’s aunt, [P], and her two sons, P1 and P2.
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The Judge did not find the appellant to be credible. It was noteworthy that the determination in the aunt's appeal made no reference to the appellant and the appellant's aunt did not attend to provide evidence which could have been material in substantiating the appellant's own claim. The Judge considered that there were discrepancies as to the accounts of events upon which the appellant relied in support of her claim and concluded that the appellant had "been completely inconsistent, unclear and has sought to manufacture claim on the back of the facts put forward by her aunt in her asylum claim in order to remain in the United Kingdom." He did not accept her account of her family being politically involved as she had claimed.
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Notwithstanding these findings of fact, the Judge was required to consider whether the appellant would face a well-founded fear of persecution on her return to Zimbabwe. In assessing this claim, the Judge relied upon the findings in RN (Returnees) Zimbabwe CG [2008] UKAIT 00083. He considered that there was no compelling or comprehensive evidence to justify departing from the guidance provided and the issue before him was whether the appellant would be able to show loyalty to the present regime in Zimbabwe and thereby avoid the risk from local militia. He repeated his findings that the appellant did not have any MDC connections or none that would be discovered on arrival in Zimbabwe. He noted that the appellant had no political involvement in the United Kingdom. The appellant had made use of her time in the United Kingdom by studying and would, accordingly, be able to state truthfully that she had spent her time in the United Kingdom as a student. However, in paragraph 35 of his determination, he stated that he was not prepared to accept that she would be unable to demonstrate support for the present regime. The implication is that she would do so but, in approaching the appeal in this way, the Judge made no express finding whether the appellant, in demonstrating loyalty to the regime was doing so from political conviction or fear of adverse consequences if she did not do so.
The appeal to the Upper Tribunal
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Her appeal came before Senior Immigration Judge Hanson whose determination was promulgated on 11 November 2011. The findings of fact made by Judge Iqbal in relation to the appellant’s case were not challenged, see paragraph 26 of the determination of Judge Hanson. In the appeal before him, however, the focus was upon the determination made in the aunt's appeal resulting in the recognition by the Canadian authorities that she was a refugee and the appeal of the appellant's mother. In the course of that appeal, the appellant gave evidence which Judge Dove QC...
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