JN (Zimbabwe) v Secretary of State for the Home Department [2008] EWCA Civ 1018

Case No C5/2008/1266[2008] EWCA Civ 1018
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ASYLUM AND IMMIGRATION TRIBUNAL
[AIT No: AA/11786/2006]
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate Tuesday, 2 nd September 2008
Before
LORD JUSTICE LONGMORE
Between
JN (ZIMBABWE)AppellantSECRETARY OF STATE FOR THE HOME DEPARTMENTRespondent
(DAR Transcript ofWordWave International LimitedA Merrill Communications Company190 Fleet Street, London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838Official Shorthand Writers to the Court)
Mr D Chirico (instructed by Messrs Wilson & Co) appeared for Appellant. for THE RESPONDENT DID NOT APPEAR AND WAS NOT REPRESENTED.
Judgment
[1]This is an application for permission to appeal in a Zimbabwean case. I will refer to the applicant as JN and I propose to give permission to appeal on the limited basis that there may be an argument that the tribunal has gone wrong in relation to its analysis of the activities of this applicant in the United Kingdom, but I refuse permission to appeal on the question of her activities actually in Zimbabwe.[2]The appeal is from a decision of the AIT of 20 January 2008 which rejected this applicant’s account of her activism, as it was put, on the part of the MDC in Zimbabwe between 2001 to 2003; that was a decision based on their view of the applicant’s credibility, particularly because she was unable to say what the initials of MDC’s predecessor, whose initials are ZAPU, stood for; because she had given three different accounts of the supposed death of her husband, firstly in the 1980s, secondly in 1991 and thirdly in 1999; thirdly because she had been inconsistent in her account of how she had recovered consciousness after her last alleged ill-treatment; and fourthly because she had delayed in claiming asylum; she had arrived in the United Kingdom on a six month visitor visa on 8 March 2004 but had not claimed asylum until 14 August 2006.[3]It seems to me that the conclusion as to her credibility in relation to activities in Zimbabwe is entirely unassailable. However, in relation to the sur place activities of this applicant, they were set out by the tribunal in paragraphs 43 to 47 of the determination and were in fact very largely common ground, but the tribunal continued:
“However, it by no means follows that every Zimbabwean who has been pictured taking part in a demonstration, or demonstrations, in London would be at risk on return. The monitoring authorities will surely assume that some people participate in those demonstrations in order to support asylum claims which are based on a fabricated account of having been politically active before leaving Zimbabwe.”
[4]That is an assertion which Mr Chirico on behalf of the applicant wishes to challenge, and indeed it might be said that the presence of the word “surely” is an expression of certainty that is sometimes used when the writer is perhaps a little less certain than he expresses himself to be. More substantially, Mr Chirico says that there are three assumptions behind the conclusion that there would be no real risk of persecution as a result of the sur place activities, namely that the applicant’s activities were indeed opportunistic; secondly that the Zimbabwean authorities would know that they were opportunistic because they would in some way get to know of the decision to that effect of the tribunal in this country; and thirdly that the Zimbabwean authorities would think that that opportunism was a relevant consideration. I can see that it is arguable that those assumptions do have to be made for the decision to stand, and if they have to be made are worthy of examination in this court. Mr Chirico has referred in paragraph 11 of his skeleton argument to various passages in the case of HS (Zimbabwe) v SSHD [2007] UKAIT 00094 on which he would seek to rely in support of his argument, and it seems to me that if that argument is made good it might be the case that this court would conclude there was an error of law in relation to the sur place activities of this applicant. It is, therefore, only in relation to that matter that I will grant permission to appeal.

Order

Application granted