Mhute v Secretary of State for the Home Department [2003] EWCA Civ 1029

Case No C1/02/2465[2003] EWCA Civ 1029
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)
Venue Royal Courts of JusticeDate Wednesday, 18 June 2003
Strand
London, WC2
B E F O R E:
THE MASTER OF THE ROLLS
(Lord Phillips of Worth Matravers)
LORD JUSTICE SIMON BROWN
(Vice President of the Court of Appeal, Civil Division)
LORD JUSTICE WARD
Between
ETHEL MHUTEApplicant-v-
Between
SECRETARY OF STATE FOR THE HOME DEPARTMENTRespondent
(Computer-Aided Transcript of the Palantype Notes ofSmith Bernal Wordwave Limited190 Fleet Street, London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
MS M PLIMMER (instructed by A S Law, Liverpool, L7 7EL) appeared for AppellantMISS P WHIPPLE (instructed by The Treasury Solicitor, London, SW1H 9JS) appeared for Respondent
J U D G M E N T(As approved by the Court)
Crown copyright©
[1]LORD PHILLIPS, MR: Lord Justice Simon Brown will give the first judgment.

LORD JUSTICE SIMON BROWN: This an appeal against an IAT determination rejecting an asylum seeker's appeals both with regard to an asylum claim and under the ECHR. It is brought by leave of Buxton LJ, given, as will shortly appear, on a very limited basis.

[3]The appellant is a 22-year old citizen of Zimbabwe. She arrived in the UK on 24 January 2001 and immediately claimed asylum. She said she would be at risk of persecution in Zimbabwe because of her membership of the Liberty Party. The Refugee Legal Council, acting on her behalf, contended in addition that her removal would put the United Kingdom in breach of its obligations under Article 3 of the ECHR.[4]The Secretary of State refused her claims by letter dated 30 January 2001, noting, amongst other things, that the Liberty Party, whilst registered in Zimbabwe, is a very minor party whose self-styled leader resides in the UK and has little support in Zimbabwe. In the Secretary of State's view it was most unlikely that the Zimbabwean authorities would have any interest in a party of such little political significance, least of all in the low level supporters of such a party like the appellant. The Secretary of State also noted that the appellant had been able to obtain a properly issued passport which she had used to leave Zimbabwe through normal immigration channels without the least difficulty. All this suggested that the authorities had no interest in her.[5]The appellant exercised her right of appeal against the Secretary of State's decision to an Adjudicator. The Adjudicator dismissed her asylum and Human Rights appeal on 8 August 2001. He concluded, essentially, that, although a credible witness, she was only a low profile member of the Liberty Party which of itself was a very minor party with little support in Zimbabwe, and there was accordingly no reasonable likelihood that she would face persecution or serious ill-treatment were she to return there.[6]The IAT gave leave to appeal to the Tribunal on the basis that, given her accepted political activities and the general political situation in Zimbabwe, her case was at least arguable. Her appeal was, however, subsequently dismissed by the IAT by a determination promulgated on 26 July 2002. The IAT recorded certain of the Adjudicator's findings:(1) Albeit the applicant was one of a small group of Liberty Party members who had been abducted, bullied and assaulted in a relatively minor way and then abandoned at some date before the 2000 elections in Zimbabwe, an experience that she must have found frightening, this was in fact a case of mistaken identity and, as indeed the members of the group themselves thought, was not because the abductors were acting for, or with, the approval of the authority.(2) Although the applicant's father and brother were assaulted by soldiers in their own home in August 2000 in the presence of the applicant and her mother, this incident was connected to civil unrest involving general rioting and looting and had nothing to do with the family's political opinions.(3) As the applicant herself said, she was able to leave Zimbabwe on her own passport with no trouble, "because I am a low profile party member".[7]The IAT also commented on the great care which the Adjudicator had taken in setting out the appellant's evidence and noted that he had found the appellant to be, "not a thrusting young woman or a politician of any description", but rather "youthfully unworldly and vulnerable."[8]Let me now read the two determinative paragraphs from the IAT's determination:
"9. We have also given careful consideration to all relevant objective evidence. This is a case where the Adjudicator heard oral evidence from the appellant. He has taken great care, in our view, setting it out at length in his determination. He has also described the appellant's character as he saw it come through while she appeared before him. Having heard [the appellant's] arguments we are not in any way persuaded that the Adjudicator's findings or conclusions were wrong. Each case must be decided on its own facts and in asylum cases the time frame of decision making is particularly important as political climates change. We accept that it was the respondent's policy not to remove any asylum seekers to Zimbabwe following advice from United Nations High Commissioner for Refugees in its letter of 11 January 2002. We do not accept though that this necessarily means that every Zimbabwean who has sought asylum in the United Kingdom qualifies to remain as a refugee under the Convention. The respondent's decision to suspend removals is not and cannot be determinative in this case. That decision is an administrative decision and his representative has quite properly argued before us that the appellant is not a refugee and can be removed to Zimbabwe. The issue before us is not whether the appellant will be removed or when she will be removed to Zimbabwe. The issue before us is whether her removal would be contrary to the UN Convention on refugees and or contrary to the obligations of the UK government under European Convention on Human Rights. We find no reason or basis to disagree with the Adjudicator's decision. A careful consideration of all the relevant objective evidence indicates to us that the present conditions pose no risk on removal to persons like the appellant. 10. We find that assessment of the appellant's personality quite important and persuasive. It fits very well with her answers and questions she was asked at the hearing. We agree with the Adjudicator's assessment and his description of the appellant's character and personality. We endorse his view that the appellant is young, immature and naive and is indeed quite impressionable. In our view this claim can be summed up in the two answers that the appellant gave to the questions that she was asked at the Adjudicator's hearing. When asked why did she think she would be a target when she went back to Zimbabwe, the appellant answered: "because I am opposed to the government"
. The next question she was asked was "how do they know that you are opposed to the government?" The answer to this question was:
"they have informers and we wear Liberty Party T-shirts"
. These questions and answers demonstrate that the Adjudicator's assessment of the appellant's personality and his conclusions on the appellant's claim are well justified."[9]Amongst the grounds of applications to the IAT for permission to appeal to this court, reference was made to a letter dated 12 June 2002 from a Miss Dawson-Shepherd, the UK's representative of UNHCR, to Susan Rowlands of the Immigration Law Practitioners Association, a letter which accompanied the application for leave to appeal and had not previously been seen by the Tribunal. I must set it out in full. It states:
"After consultation with our Headquarters, we would like to share with you UNHCR's latest position on returns to Zimbabwe. UNHCR is of the opinion that the situation on the ground has not substantially changed since our earlier statement. According to most independent observers, the presidential elections of March 2002 were held in a climate of violence and intimidation, including arrests and extra-judicial killings of members of political parties opposed to the government and the ruling party. Consequently, the elections have been strongly criticised by many States and resulted in the suspension of Zimbabwe from the Commonwealth. Since the elections, there has been no abatement of political violence against the opposition, particularly the Movement for Democratic Change (MDC), despite pressure from the international community directed at the ruling party to launch a rapprochement with the opposition. Real or perceived members and supporters of the MDC or any other opposition party or movement continue to be the target of human rights violations, including ill-treatment, torture, arbitrary arrest and detention. Likewise, persons who, because of their background, might be considered to be critical of the current regime are also reported to suffer similar treatment. There have also been credible reports of further population displacement especially in Matabeleland, the stronghold of the opposition MDC, due to continuing political violence."
[10]I should set out too the "earlier statement" referred to in the second paragraph of that letter:
"UN REFUGEE AGENCY calls on the UK to stop deporting asylum seekers from Zimbabwe. The UN High Commissioner for Refugees (UNHCR) is urging the British government to suspend temporarily the removal of unsuccessful asylum seekers to Zimbabwe. In the spirit of the UN Refugee Convention it asks the government to grant asylum to those who risk persecution in Zimbabwe. Anne Dawson-Shepherd, the UNHCR Representative in the UK said: "
UNHCR is gravely concerned about the serious human rights violations in Zimbabwe. Those who have sought asylum in the UK should be offered a safe haven and all deportations stopped. Their return to Zimbabwe under current circumstances could seriously jeopardise their physical safety, their liberty and their life." We are concerned that the Zimbabwean government is sanctioning extra-judicial executions, hostage-taking, torture and targeted violence in the run-up to the presidential elections in March. The police and other law-enforcement agencies are turning a blind eye to acts of violence and torture against all those opposed to the re-election of President Mugabe, as well as journalists and human rights activists. UNHCR calls on the UK government to respond to the protection needs of Zimbabwean asylum seekers in the spirit of the 1951 Convention. For further information contact Claire Doole, UNHCR UK Press Officer."[11]In refusing leave to appeal to this court on 5 September 2002, the Chairman of the Tribunal which had dismissed the appellant's appeal said, with regard to the letter of 12 June:
"The further evidence attached to the grounds is of marginal relevance as the applicant's claim for asylum is based on her membership and activities for the Liberty Party and not the MDC."
[12]The application for permission to appeal, after its refusal by the Tribunal, was renewed to this court. On 23 January 2003 permission was granted by Buxton LJ on a very limited basis in these terms:
"I give permission for only one point to be argued. That relates to the IAT's analysis of the UNHCR letter dated 12 June 2002. That issue is only obscurely taken in the Grounds of Appeal to this court, but it emerges from S9 of the application for permission to appeal made to the IAT, and the IAT's comments thereon."
Buxton LJ then indicated that he regarded the IAT's decision unappealable "in every other respect".[13]The first point to note about the appeal is that the reference to "the IAT's analysis of the UNHCR letter dated 12 June 2002" is, of course, a reference to the Chairman's reasons for refusing leave to appeal. There neither was, nor could have been, any other analysis of that letter since it was not communicated to the IAT until after the substantive determination had been promulgated.[14]For my part, therefore, I question whether, in any event, the letter is properly admissible in evidence in support of an appeal. Recognising, however, that this question is already the subject of possibly conflicting decisions in this court (contrast Kibiti v SSHD [2000] Imm AR 594 with A v SSHD [2003] EWCA (Civ) 175) and it being, as I believe, unnecessary to resolve this doubt for the disposal of the present appeal, I put that difficulty aside.[15]The second point to note is that the letter recognises, in terms, that "the situation on the ground has not substantially changed" since the statement of 11 January 2002. The statement of January 2002 was before the IAT and, indeed, it was discussed in paragraph 7 of that determination (which I have not thought it necessary to set out) and referred to in terms in paragraph 9 of the determination in the passage which I have quoted above. That January statement, like the subsequent June letter, draws attention to the grave risks facing those opposed to President Mugabe. The statement refers to:
".... all those opposed to the re-election of President Mugabe, as well as journalists and human rights activists."
The subsequent June letter refers to:
"Real or perceived members and supporters of the MDC or any other opposition party or movement ...." and: "
Likewise, persons who, because of their background, might be considered to be critical of the current regime." In short, there was nothing new in the June letter, but merely a re-statement in clear terms of the risks facing all who oppose President Mugabe in today's unhappy Zimbabwe, risks no less grave following the March 2002 elections than in the run up to those elections.[16]Although, no doubt, the President's refusal of leave on 5 September 2002 could have been couched in more helpful and felicitous terms, I see no good reason to suppose that the Tribunal, a Tribunal of three and not just the President, when considering the substantive appeal, which had earlier been before it, had not paid full and proper heed to the earlier UNHCR statement and the views that it had expressed as to the risk faced by those opposing President Mugabe. On the contrary, it seems to me plain that both the Adjudicator, and the IAT on appeal, had indeed recognised the risks run by those opposed to the regime.[17]That is not to say, however, that the risks in all such cases are identical, or that everybody who is opposed to the present regime is necessarily, and by that fact alone, entitled to refugee status. Rather, it is necessary in every case to evaluate the risk. That is the very exercise upon which the Adjudicator and the IAT each in turn embarked, each of them concluding, as already noted, that this appellant belongs only to a very minor and largely insignificant party; that she herself is in any event a low profile member of it; that she has never been persecuted for a Convention reason; that she was able without the least difficulty to leave the country on an official passport; and that the only way which anybody in Zimbabwe would ever in future know that she was opposed to the regime would be (see paragraph 10 of the IAT;s detemination) if she chose to wear [the] Liberty Party T-shirts. It would be a surprising thing if an asserted intention to wear such a T-shirt of itself carried with it an entitlement to asylum.[18]Miss Plimmer submitted to us that the Tribunal was not entitled to "go behind" the UNHCR's advice in their January 2002 statement and subsequent June letter that all opposed to the President are at grave risk. That is a submission which, for my part, I am wholly unable to accept. Every case has to be judged on its individual facts and an assessment made as to whether, in truth, that particular claimant would be at real risk of persecution on return.[19]In my judgment, even giving the fullest possible weight to the June 2002 UNHCR letter, there is no substance in this appeal. I would dismiss it.

LORD JUSTICE WARD: I agree.

[21]LORD PHILLIPS, MR: Lord Justice Buxton gave permission to appeal for only one point to be argued. If his reasons are taken literally, that point related to the Tribunal's analysis of the letter dated 12 June 2002, to which Lord Justice Simon Brown has referred. That is puzzling because the letter in question was not before the Tribunal when it reached its decision. It was put before the Tribunal as additional evidence supporting the application for permission to appeal to this court. I cannot see how any shortcoming in analysing that letter could be a reason for giving permission to appeal, restricted to that shortcoming.[22]That letter did no more than confirm that, as at June 2002, conditions in Zimbabwe had not materially changed from those that were the subject of an earlier press release from the UNHCR sent under cover of a letter of 11 January 2002. That press release has also been referred to by my Lord in his judgment.[23]I would approach this appeal on the basis that it was the analysis of the Tribunal of the earlier press release that Buxton LJ had in mind when giving permission to appeal on that one point. As to that, as the Tribunal remarked in paragraph 9 of its decision:
"We accept that it was the respondent's policy not to remove any asylum seekers to Zimbabwe following advice from United Nations High Commissioner for Refugees in its letter of 11 January 2002. We do not accept though that this necessarily means that every Zimbabwean who has sought asylum in the United Kingdom qualifies to remain as a refugee under the Convention. The respondent's decision to suspend removals is not and cannot be determinative in this case. That decision is an administrative decision."
[24]In that passage the Tribunal was dealing with a submission that had been advanced by counsel for the appellant, not Miss Plimmer, who has appeared before us, who has made it plain that she does not seek to advance any such argument. The Tribunal continued:
".... his representative has quite properly argued before us that the appellant is not a refugee and can be removed to Zimbabwe. The issue before us is not whether the appellant will be removed or when she will be removed to Zimbabwe. The issue before us is whether her removal would be contrary to the UN Convention on refugees and or contrary to the obligations of the UK government under European Convention on Human Rights. We find no reason or basis to disagree with the Adjudicator's decision."
[25]Miss Plimmer's submissions to us have necessarily founded largely on the UNHCR evidence, whether one takes it from the earlier press release or the later letter. She has submitted that this evidence shows that any opponent of President Mugabe or his regime is at risk of persecution, and that the appellant, as a member of the Liberty Party, falls into that category.[26]But the appellant's problem was and is that she has been unable to demonstrate that she received any form of molestation on the grounds of her allegiance to the Liberty Party. She had given evidence of one occasion in which she and other members of that party were the subject of violence. The Adjudicator found that that was as a result of mistaken identity and had nothing to do with her political allegiance. In those circumstances the Adjudicator found that she had not made out that she had a well-founded fear of persecution if she were returned to Zimbabwe. It seems to me that no error of law can be demonstrated on the part of the Tribunal in concurring with that view.[27]For that reason I, also, would dismiss this appeal.

Order

Appeal dismissed with costs. Public Funding Order of the appellant's costs.

Cited in 3 later judgments