EM (Zimbabwe) v SSHD [2009] EWCA Civ 1006

Case No C5/2009/0429[2009] EWCA Civ 1006
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ASYLUM AND IMMIGRATION TRIBUNAL
[AIT No. AA/03984/2008]
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate Thursday, 20 th July 2009
Before
LORD JUSTICE DYSON
Between
EM (ZIMBABWE)AppellantSSHDRespondent
(DAR Transcript ofWordWave International LimitedA Merrill Communications Company165 Fleet Street, London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7831 8838Official Shorthand Writers to the Court)
Mr S Vokes (instructed by Coventry Law Centre) appeared for Appellant. for THE RESPONDENT DID NOT APPEAR AND WAS NOT REPRESENTED
Judgment
[1]This is a renewed application for permission to appeal the dismissal of this appellant’s claim for asylum on a reconsideration of her appeal by the AIT. The immigration judge accepted that the appellant was a supporter of the MDC in the United Kingdom and that she had joined the MDC Wolverhampton Branch. He also accepted that she may well have been involved in fundraising activities and attended vigils outside the Zimbabwean Embassy in London. The reason why he dismissed the appeal is to be found at paragraph 16 of the determination where he says that, although he accepts as an objective fact that President Mugabe has his spies in the UK who monitor MDC activities, there is no evidence before him that the appellant would be known to those who support President Mugabe. Mr Vokes submits that the immigration judge failed to have regard to the country guidance case in HS (Returning Asylum Seekers)(Zimbabwe) CG [2007] UK AIT 00094. That was a country guidance case in which the principal issue was whether failed asylum seekers were at risk of persecution on return to Zimbabwe on account of the fact that they were failed asylum seekers. The AIT decided that they were not. In the course of a long determination, in a number of places the tribunal distinguished between failed asylum seekers on the one hand and those who were perceived to be activists in the United Kingdom opposed to the Zanu-PF regime on the other hand. For example, at paragraph 104 they refer to the fact that:
“…the regime has invested considerable resources in seeking to infiltrate groups in the United Kingdom to identify those who support the opposition or who are ‘activists in the country’.”
[2]Similar statements appear at paragraphs 122 and 279 as well as in other places too. It may well have been that the immigration judge in the present case had regard to those passages when he accepted as an objective fact that President Mugabe has his spies in the UK who monitor MDC activities. It follows that I am not persuaded by Mr Vokes’ submission that this decision was flawed because the immigration judge failed to have regard to what was said in HS. It seems to me that the immigration judge did take into account the fact that President Mugabe has his spies in the UK who monitor MDC activities.[3]But it seems to me that it is arguable that the reasons the immigration judge gave for holding that the appellant was not at risk were inadequate. It is at least arguable that it was insufficient simply to say that there was no particular evidence before the immigration judge that the appellant would be known to those who spy on behalf of President Mugabe. It is arguable that it was sufficient to found this claim for the appellant to establish, as she did, that President Mugabe supporters infiltrated groups in the United Kingdom which support MDC in opposition to Zanu-PF and that the appellant was a member of such a group. There does not appear to have been any attempt by the immigration judge to assess the extent of the appellant’s involvement in the MDC Wolverhampton Branch or the extent of her fundraising activities and attendance at vigils outside the embassy. I note that Sir Richard Buxton, in refusing this application on paper, said:
“The judge was well aware of the evidence as to activities of the Zimbabwean regime in the UK, but was entitled to hold that in view of the applicant’s very limited record of involvement in MDC activities in this country, and that her claim of MDC involvement in Zimbabwe had been found to be false, she would not be singled out by the regime.”
[4]But, as I read the immigration judge’s decision, he did not dismiss the appeal for that reason. It is implicit in his reasoning, or at least arguably so, that if the authorities had known of the appellant’s activities, whatever the extent of those activities, that would, or might, have been sufficient to justify allowing the appeal and that the only reason why the immigration judge did not allow the appeal was that there was no evidence that the authorities did have that knowledge. In these circumstances it seems to me that it is at least arguable that this determination is flawed and I therefore give permission to appeal.

Order

Application granted