SS & Ors (Zimbabwe) v Secretary of State for the Home Department [2013] EWCA Civ 237

[2013] EWCA Civ 237Case No C5/2010/2970C5/2011/3001; C5/2012/0293; C5/2011/2934;C5/2011/3153
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 26/03/2013
Before
LORD JUSTICE PILLLORD JUSTICE DAVISMR JUSTICE WARREN
Between
(1) SS (ZIMBABWE)Appellants(2) SC (ZIMBABWE)Appellant(3) JK (ZIMBABWE)Appellant(4) JS (ZIMBABWE)Appellant(5) PN (ZIMBABWE)Appellant(6) SM (ZIMBABWE)Appellant(7) BC (ZIMBABWE)AppellantSECRETARY OF STATE FOR THE HOME DEPARTMENTRespondent
MR ABID MAHMOOD (instructed by Messrs Blakemores) for First, Third, Fifth, Sixth and Seventh Appellants.MR ABID MAHMOOD and MS NAZMUN ISMAIL (instructed by Messrs Blakemores) for Fourth Appellant.MISS EMMA RUTHERFORD (instructed by Messrs Blakemores) for Second Appellant.MR COLIN THOMANN (instructed by Treasury Solicitors) for Respondent.Hearing Hearing dates : 21 st and 22 nd January 2013
Judgment

Introduction

[1]These seven appeals all involve citizens of Zimbabwe. All failed in their asylum appeals (and various other grounds of appeal) before the Upper Tribunal. The question raised is as to the correct disposal of each of them in the light of the Supreme Court decision in RT (Zimbabwe) v SSHD [2012] UKSC 38; [2012] 3 WLR 345 decided and reported after the hearings below, in the light of the relevant country guidance. The respondent Secretary of State at the oral hearing before us said that all save one should be remitted to the Upper Tribunal for fresh determination; but that one appeal (that of BC) should be dismissed. The appellants, on the other hand, said that the appeals should be allowed in each case.[2]A further complicating factor is that in some, although by no means all, of these cases the Tribunal had also relied on the country guidance relating to Zimbabwe enshrined in the Upper Tribunal determination in EM (Zimbabwe) & Ors v SSHD [2011] UKUT 98 (IAC) and which was designed to supersede the previous country guidance given by the Asylum and Immigration Tribunal in RN (Zimbabwe)CG [2008] UKAIT 00083. But that determination had been, by consent, quashed by order of the Court of Appeal on 13 June 2012 for procedural reasons; and the matter was remitted to the Upper Tribunal for further determination. There was a lengthy hearing in the Upper Tribunal in October 2012, with voluminous evidence filed, and further written submissions were provided to the Upper Tribunal in November 2012. At the time of the oral hearing before us it was understood that the tribunal’s fresh determination was likely to be promulgated in the near future. (Whether one side or another thereafter would seek to appeal remained to be seen). At all events, the quashing, in the interim, of the determination in EM (Zimbabwe) after the relevant tribunal determination had been a factor, in some of these appeals, in causing the Secretary of State to say that they should be remitted. In the result, the Upper Tribunal promulgated its determination concerning country guidance for Zimbabwe on 31st January 2013, a few days after the hearing before us and after we had reserved judgment: see CM (EM country guidance: disclosure) Zimbabwe CG [2013] UKUT 00059 (IAC). Further written submissions have been put in by the parties in consequence. There was no request for a further oral hearing.[3]In the light of this development occurring after the oral hearing, the Secretary of State’s position changed to saying that all the appeals should now be dismissed. The appellants maintained that their appeals should be allowed; but in the alternative said that they should now be remitted.[4]It is a feature of all of these appeals that the appellants were found not to be credible in the version of events they put forward to the tribunal. A further feature of these appeals is the extent to which such findings of want of credibility may impact on what the Secretary of State says is a question of fact common to each appeal: that is, whether it remains necessary for the appellants (if returned to Zimbabwe) to demonstrate loyalty to Zanu-PF to ensure safety from persecution. The Secretary of State says that the findings of lack of credibility do, or may well, impact on the ultimate determination of the asylum claims.[5]The appellants, on the other hand, say as part of their primary case that in the light of the Supreme Court decision in RT (Zimbabwe) the findings of lack of credibility have no further relevance: each appeal would be bound to succeed and remittal to the Upper Tribunal would be pointless. In the alternative, it is said that in any event it would not be just for this court to order any of these appeals to be remitted. By either route, therefore, it is said that these appeals should be allowed outright.[6]Before us, all of the appellants save SC were represented by Mr Abid Mahmood. SC was represented by Ms Emma Rutherford. The Secretary of State was represented by Mr Colin Thomann.

RT (Zimbabwe)

[7]In my view, in order properly to explain where the parties are at issue and in order to determine the proper disposal of each of these appeals on their own particular circumstances it is necessary first to consider the ambit and implications of the decision in RT (Zimbabwe).[8]In that case each of the Zimbabwean claimants had been found (contrary to their protestations in some of the cases) not to hold any political beliefs; but it was also found by the tribunal that they could and would, if necessary, be able to demonstrate loyalty to the regime and therefore there was no real risk that they would be subject to ill-treatment if returned to Zimbabwe.[9]The core decision of the Supreme Court, applying the principles laid down in HJ (Iran) v SSHD [2010] UKSC 31; [2011] 1AC 596, was to the effect that there was no basis for treating differently a person who had no political beliefs, but who, in order to avoid persecution, would be obliged to pretend that he did, from a person who did have active political beliefs and who, in order to avoid persecution, would be obliged to conceal them.[10]The hearing in RT (Zimbabwe) in fact involved four appeals. The hearing took place only four days after the country guidance decision contained in the Upper Tribunal determination in EM (Zimbabwe) had been quashed in the Court of Appeal. We were told, in fact, by Mr Thomann that counsel appearing for the Secretary of State in the Supreme Court had only learned of the very recent quashing of EM (Zimbabwe) on the first day of the hearing. At all events, it appears that the hearing was conducted on the concession that the cases before the Supreme Court fell to be decided “in the light of the latest country guidance for Zimbabwe” to be found in the Tribunal decision in RN (Zimbabwe): see paragraphs 2 and 3 of the judgment of Lord Dyson. Lord Dyson there drew attention to the finding of the tribunal in that latter case, as expressed in paragraph 216 of the determination, to the effect that those at risk “were not simply those who are seen to be supporters of the MDC [the then principal opposition party] but anyone who cannot demonstrate positive support for Zanu-PF or alignment with the [Mugabe] regime.”[11]In paragraph 14, Lord Dyson cited two reasons given by Pill LJ in the Court of Appeal in one of the appeals then before the Supreme Court, (KM), in directing remittal, by reference to the decision in RN (Zimbabwe):
“First, an applicant found not to have been a witness of truth will not be assumed to be truthful about his inability to demonstrate loyalty: para 246. Secondly, there is recognition, in paras 229 and 230, of categories of people, for example, those returning to more affluent areas and likely to be associated with the regime, who may be returning to a milieu where loyalty to the regime may be assumed and the risk of persecution does not arise.”
Aspects of the country guidance given in RN (Zimbabwe), including the prevalence of road blocks, were further summarised in paragraphs 15 and 16 of the judgment of Lord Dyson. Reference was made specifically to paragraph 258 of the determination in RN (Zimbabwe) to the effect that those at risk on return on account of imputed political opinion were no longer restricted to supporters of the MDC but included anyone unable to demonstrate support for or loyalty to the regime of Zanu-PF.[12]There was then detailed consideration of the decision in HJ (Iran) and other cases. It was concluded that there was no principled basis for treating differently the right to hold and not to hold political beliefs: and that applied as much to the committed political neutral as to one to whom political neutrality was one of indifference. It was also observed that the idea “if you are not with us you are against us” was a feature of dictatorial societies.[13]As to imputed political beliefs, it was noted by Lord Dyson at paragraph 55 of his judgment that a claim for asylum may succeed if it was shown that there was a real and substantial risk that, despite the fact that the asylum seeker (if returned) would assert support for the regime, he would be disbelieved and his political neutrality – and therefore lack of actual support for the regime – thereby exposed.[14]At paragraphs 56 to 59 Lord Dyson said this:
“56. The issue that is common to all these cases as regards imputed belief is whether there is a real and substantial risk that the political neutrality of the claimants would be discovered by the militia gangs and War Veterans who man road blocks even if the claimants were to dissemble and say that they support the regime. This raises two questions namely (i) whether the claimants would be likely to be stopped or face serious interrogation at road blocks at all; and (ii) if yes, whether their pretended support for the regime would be disbelieved. 57. As regards the first question, the best evidence as to the likelihood of being stopped and interrogated at a road block is provided by RN. The AIT’s decision states that the militia groups and War Veterans operate in “rural areas” and “urban districts” (para 213) and “across the country” (para 216). The risk of persecution “arises throughout the country” (para 225) and people living in “high density urban areas” face the same risk from militias and War Veterans as those living in rural areas (para 228). But those living in more affluent low density urban areas or suburbs are likely to avoid such difficulties (para 229). If a failed asylum seeker is associated with the regime or “is otherwise a person who would be returning to a milieu where loyalty to the regime is assumed,” he will not be at risk simply because he spent time in the United Kingdom and sought to extend his stay by making a false asylum claim (para 230). In other words, it is only if an applicant returns to a milieu where loyalty to the regime is assumed that his claim is likely to fail at the first hurdle. 58. As for the second question, the immigration judge would have to consider the kind of questions that the applicant might be asked when interrogated at the road block; how effective a liar the applicant would be when asserting loyalty to the regime; how credulous the interrogators would be in the face of such lies; whether the interrogators might ask the applicant to produce a Zanu-PF card or sing the latest Zanu-PF campaign songs and whether the applicant would be able to produce a card and sing the songs. It is difficult to see how a judge could provide confident answers to these questions. He or she would almost certainly be unable to avoid concluding that there would be a real and substantial risk that, if a politically neutral claimant were untruthfully to assert loyalty to the regime, his political neutrality would be discovered. 59. To summarise, in the light of RN, it is difficult to see how an asylum claim advanced on the basis of imputed political opinion could be rejected, unless the judge was able to find that the claimant would return to a milieu where political loyalty would be assumed and where, if he was interrogated at all, he would not face the difficulties faced by those who were not loyal to the regime in other parts of the country. If the claimant would return to any other parts of the country, the judge would be likely to conclude that there was a real and substantial risk that a politically neutral person who pretended that he was loyal to the regime would be disbelieved.”
[15]The way in which the four appeals before the Supreme Court were disposed of was argued to be of relevance on these present appeals before us. This is because there too there was an issue as to whether the appeals of the four claimants should succeed outright or should be remitted to the Upper Tribunal.[16]In the first case – RT itself – the appellant, it is to be noted, had been found by the tribunal to be a credible witness. It had been found that she had never been politically active and it had been found that on return she would be required to demonstrate loyalty to the regime which she could not do. It was conceded that she would not be returning to a milieu where support for the regime would be assumed. In such circumstances, it was held that there was no case for remitting the matter to the tribunal.[17]In the second case, SM, the appellant (unlike RT) had been found by the tribunal not to have been a credible witness, to have given inconsistent accounts of her alleged involvement with the MDC and to have lied in a number of other respects. Although her mother had left Zimbabwe in 2002 and had been granted refugee status in 2003, SM herself had had no difficulties living in Zimbabwe between 2002 and 2008 (when she travelled to the United Kingdom). The tribunal had further in any event found that she would, as and when required, be prepared to lie to the Zimbabwean authorities on return as to her political affiliation. The Court of Appeal, on the other hand, had concluded that it was not enough to hold that SM would be willing to lie as and when required; nor was willingness to lie the same as ability to prove loyalty to the regime. But the Court of Appeal went on to hold:
“On the other hand, in view of her lack of credibility overall, it remains open to question whether her case should fail for lack of proof as in TM. We will therefore allow the appeal and remit the case to the Upper Tribunal for redetermination.”
[18]Lord Dyson in terms stated (paragraph 64) that the Court of Appeal were “correct”. For the reasons given in RN (Zimbabwe) the fact that SM’s claimed support for the MDC was rejected as incredible was not decisive (viz. against her). But it was also noted that, in view of her lack of credibility throughout, SM “might have difficulty in demonstrating that she did not have loyalty to the regime”. It was decided that the matter should be remitted to the tribunal in the light of RN (Zimbabwe) and in the light of what had been said in RT (Zimbabwe) itself about HJ (Iran) and imputed belief. It was also recorded that there in fact was no cross-appeal on behalf of SM that her asylum claim should be recognised by the Supreme Court.[19]As to the third case, AM, before the Supreme Court, he too had been found by the tribunal not to be a credible witness and had been found to have had no political profile and no political engagement in Zimbabwe. He had previously returned there once without any problem. It was noted by Lord Dyson that the Court of Appeal had directed remittal, for the reason that AM had been found not to be a credible witness. There was no cross-appeal and the decision to remit was upheld.[20]The fourth case, KM, before the Supreme Court invoked a direct challenge to the decision of the Court of Appeal to remit. It was said that KM’s appeal should have been, and should be, allowed outright. So far as the facts of this case were concerned, one feature – described by Lord Dyson in paragraph 12 as “a fact of central importance” – was that KM’s son had been granted asylum in the United Kingdom on the grounds that he was a sympathiser of the MDC. It had been conceded in the Court of Appeal that the appeal from the tribunal should be allowed on the grounds of inadequate assessment of risk in the light of the guidance in RN (Zimbabwe). It was also conceded in that case that there was a real risk that the fact that the son had been granted asylum as an MDC sympathiser would come out if KM were returned.[21]Lord Dyson disposed of KM’s appeal by noting the two reasons given by Pill LJ (as set out above) for saying that KM’s case, though “strong”, was not bound to succeed before the tribunal and so should be remitted. Lord Dyson then said this at paragraphs 66 and 67:
“66. ….I have referred at para 14 above to the two reasons given by Pill LJ for his conclusion that, although KM’s case was “strong”, it could not be said that it was bound to succeed before the Tribunal. The first was that an applicant who had been found to be an untruthful witness would not be assumed to be truthful about his inability to demonstrate loyalty to the regime. But, as I have already said, the circumstances in Zimbabwe as described in RN mean that the fact that an applicant is lacking in credibility may be a matter of little relevance on the key question of whether he will be able to demonstrate loyalty. As for the second reason, the milieu to which KM would be returned is likely to be of marginal relevance in this case. That is because, as was conceded before the Court of Appeal, there was a real risk that the fact that KM’s son had been granted asylum in the United Kingdom on account of his MDC sympathies would come out on his return to Zimbabwe (para 6 Pill LJ’s judgment) and that this might place him “in an enhanced risk category by making it more difficult for him to demonstrate his loyalty to the regime” (para 12). 67. I can well understand why the Court of Appeal decided to remit this case to the Tribunal. But it seems to me that, in the light of the concessions to which I have referred and the fact that KM’s case was therefore very strong, it would not be just to subject him to a third Tribunal hearing.”
[22]The judgment of Lord Dyson was one with which Lord Hope, Lady Hale, Lord Clarke, Lord Wilson and Lord Reed agreed. Lord Kerr also agreed with it. In the course of his concurring judgment he said at paragraph 72:
“72. As a matter of fundamental principle, refusal of refugee status should not be countenanced where the basis on which that otherwise undeniable status is not accorded is a requirement that the person who claims it should engage in dissimulation. This is especially so in the case of a pernicious and openly oppressive regime such as exists in Zimbabwe. But it is also entirely objectionable on purely practical grounds. The intellectual exercise (if it can be so described) of assessing whether (i) a person would - and could reasonably be expected to – lie; and (ii) whether that dissembling could be expected to succeed, is not only artificial, it is entirely unreal. To attempt to predict whether an individual on any given day, could convince a group of undisciplined and unpredictable militia of the fervour of his or her support for Zanu-PF is an impossible exercise.”

Country guidance

[23]Something needs to be said about the country guidance current at the time of the oral hearing before us relating to Zimbabwe, pending the imminent promulgation of further country guidance: which further guidance has now been promulgated.[24]In my view – and notwithstanding the ostensible political changes in Zimbabwe since 2008 – the country guidance given in RN (Zimbabwe) in the meantime did continue to apply pending promulgation of a further country guidance decision. Indeed, that was the accepted approach in RT (Zimbabwe) itself. That further accords with paragraph 12 of the Tribunal’s Practice Direction dated 10 February 2010. It also accords with the general statements contained in the Court of Appeal decision in R (SG (Iraq)) v SSHD [2012] EWCA Civ 940; [2013] 1 WLR 4. It was there pointed out that decision makers and tribunal judges should follow applicable country guidance determination unless “very strong grounds supported by cogent evidence” were adduced to justify not doing so. These observations, nevertheless, do show that country guidance is not to be applied inflexibly. As pointed out by Carnwath LJ (sitting in the Asylum and Immigration Tribunal with Mr CMG Ockleton, Deputy President, and Senior Immigration Judge Storey) in the case of TK (Sri Lanka CG) [2009] UKAIT 00049 at paragraph 6, country guidance may be applied by reference to new evidence as it emerges (and as also accords with the Practice Direction). But that evidence must be cogent.[25]In this regard I found aspects of Mr Thomann’s submissions, at the oral hearing before us, with all respect, to be rather equivocal. He accepted that, the determination in EM (Zimbabwe) having been quashed, it had – pending redetermination of the matter – no legal standing. But at the same time he alluded to the fact of the great quantity of evidence placed before the Upper Tribunal at the recent country guidance rehearing (albeit, of course, not placed before us). He also sought to refer us to the summary of the evidence received in EM (Zimbabwe) to support his submission that the result of remittal would not be a foregone conclusion. He briefly cited to us selected extracts from various materials designed to show that, for returned Zimbabweans who were not MDC supporters and who failed in their claims for asylum, things would be altogether much better than they may have been in 2008. He also referred us to parts of UKBA’s Country of Origin Information Report issued on 19 August 2011 – which report I would accept in principle is capable of being new evidence to supplement what is said in RN (Zimbabwe), subject to its cogency being judicially appraised and the weight to be given to it judicially assessed in a particular case – and to the latest Operational Guidance Note issued by UKBA on 10 August 2012, which I doubt, if taken on its own, of itself constitutes admissible evidence for this purpose at all. (These matters have, of course, since found reflection in the subsequently promulgated determination in CM (Zimbabwe).)[26]As I understood him, Mr Mahmood had, pragmatically, accepted in the course of his oral argument that if the latest pending country guidance determination were to be promulgated prior to this court making its decision – as, in the event, has happened – then this court could (subject to any further submissions required in consequence) have regard to it. However, in his subsequent written submissions he did not accept that, saying that this court could only properly decide the matter by regarding RN (Zimbabwe) as the relevant country guidance.[27]At the time of the hearing before us, some elements of Mr Thomann’s arguments seemed to suggest (although he denied the proposition) that the relevant appeal should be remitted just because the tribunal could then apply, at the redetermination, the latest country guidance which by the time of the rehearing would have been issued. The implication was that it could have been an unjust windfall to these appellants to have their appeals determined now on the footing of (on the Secretary of State’s assessment) what was in reality going to be an outdated and inaccurate exposition of the relevant country situation. I do not, however, think this court could properly have remitted these cases simply on the basis of such an eventuality. In my view, for remittal to be justified in any of these appeals, as matters stood at the time of the oral hearing, it required to be justified on grounds over and above the fact that fresh country guidance – whatever it might be – was (at the time) pending. I would also note that no application was made by the Secretary of State for the hearing of these appeals to be adjourned pending the forthcoming promulgation of the fresh country guidance determination by the Upper Tribunal.[28]In the event, as I have indicated, the country guidance in RN (Zimbabwe) has now been overtaken by the determination in CM (Zimbabwe). That determination has not itself been designated in all respects a country guidance determination. But it does endorse, and restate, the country guidance determination of EM (Zimbabwe) relating to Zimbabwe as at January 2011.[29]The determination in RN (Zimbabwe), it has to be said, had not always proved easy of consistent application. Certain passages in it, if taken on their own, might tend towards one conclusion. Other passages, if taken on their own, might tend towards another conclusion. What appear to be “bright line” and readily applicable statements in one passage are then made subject to extensive qualification in other passages. My own experience, for what it is worth, has been that tribunal judges and Administrative Court judges have generally tended to adopt a broad approach to the various statements in RN (Zimbabwe); and in particular have emphasised the importance of deciding each Zimbabwe case on its own particular facts.[30]Without doubt there were a number of passages in RN (Zimbabwe) which made clear that those at risk were not simply those seen to be supporters of the MDC but anyone who could not demonstrate positive support to Zanu-PF or alignment with the regime: see, for example, paragraph 216, as noted at the outset of the judgment of Lord Dyson in RT (Zimbabwe). There are many other passages, some of which are helpfully summarised in paragraph 16 of RT (Zimbabwe), which also refer to the risk of questioning at roadblocks or rural areas or high-density urban areas (as opposed to low-density areas or areas where loyalty to the regime is assumed).[31]Perhaps the principal focus in cases of this kind, which called for consideration of RN (Zimbabwe), had tended towards what is said between paragraphs 224 and 247 of the determination and in the summary in paragraphs 258 to 264. Mr Mahmood, understandably, drew attention to the various identified risk factors and asked us to bear them in mind on each appeal (which I have sought to do). In particular he drew attention to paragraphs 231 to 234, which were perhaps the high watermark of the case he advanced, which provide as follows:
“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. 232. And, regardless of the political opinion or associations of the individual, or the absence of any at all, the persecution involved in the infliction of such ill-treatment will be for a reason recognised by the Convention. This is because it is inflicted on the basis of imputed political opinion. 233. In our view the level of risk is not reduced by the failed asylum seeker returning not to his home area but to another area instead where he is unknown. As a newcomer to the area, he would be very likely to encounter enquiries from those representatives of the regime in control of the area as to his background, history and associations. In such an area the same risk arises of being faced with a demand to demonstrate loyalty to the ruling party and it may be that the level of risk is perhaps enhanced because, as a newcomer, he would attract interest as to his background and suspicion of having been displaced already on account of being found to be disloyal or a potential supporter of the opposition to the regime. 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.”
[32]But it may be noted that such paragraphs immediately follow on from paragraph 230 which had stated as follows:
“230. It remains the position, in our judgement, that a person returning to his home area from the United Kingdom as a failed asylum seeker will not generally be at risk on that account alone, although in some cases that may in fact be sufficient to give rise to a real risk. Each case will turn on its own facts and the particular circumstances of the individual are to be assessed as a whole. If such a person (and as we explain below there may be a not insignificant number) is in fact associated with the regime or is otherwise a person who would be returning to a milieu where loyalty to the regime is assumed, he will not be at any real risk simply because he has spent time in the United Kingdom and sought to extend his stay by making a false asylum claim.”
It may also be noted that paragraph 231 is expressly qualified by the words “apart from in those circumstances”: that is, those set out in paragraph 230.[33]It may yet further be noted that paragraph 230 expressly states, among other things, that “each case will turn on its own facts” and that the particular circumstances of the individual were to be assessed as a whole. This – very important – qualification is amplified a little later in the determination. At paragraph 241 it is among other things stated:
“That does not mean that a bare assertion of Zimbabwean nationality and the claimed inability to demonstrate Zanu-PF membership or loyalty to the regime will be sufficient to establish a right to be recognised as a refugee.”
Then at paragraphs 244 to 247 this is said:
“244. What this means is that each case will turn on its own facts. We do not say that most Zimbabwean claimants will be unable to demonstrate the loyalty to the regime that will be necessary to avoid the persecutory ill-treatment meted out to those who cannot. The evidence indicates that there are large numbers of Zimbabweans who are members or supporters of Zanu-PF or who voted for that party at the elections, whether that was because of expedience or genuine support for the aims and objectives of the party. 245. Many such persons will no doubt have contemplated migration to escape the economic catastrophe of their country, even if because of their demonstrated support for the party they have had access to some services such as the food aid that has been denied to others. Whilst it is entirely understandable that in such dire circumstances many should seek economic opportunities abroad, that does not give rise to a sound claim to be in need of international protection. 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. 247. But care must be taken in respect of such an appellant who has chosen to put forward a wholly untruthful account in support of his claim. The standard of proof he must meet is not a demanding one. As was pointed out in GM & YT (Eritrea) v SSHD [2008] EWCA Civ 833, per Buxton LJ at paragraph 31: ‘In every case it is still necessary to consider, despite the failure of the applicant to help himself by giving a true or any account of his own experiences, whether there is a reasonable likelihood of persecution on return.’” ‘In every case it is still necessary to consider, despite the failure of the applicant to help himself by giving a true or any account of his own experiences, whether there is a reasonable likelihood of persecution on return.’”
[34]All these particular propositions were, it would seem, not debated in RT (Zimbabwe): they did not need to be, as the focus of that case was on what one might call the application of the HJ (Iran) principle. But, that said, there was nothing in RT (Zimbabwe) to cast doubt on these propositions as set out in paragraphs 244 to 247 or to doubt the appropriateness of giving RN (Zimbabwe) a broad application by reference to the facts of each particular case.

The relevance of a finding of lack of credibility

[35]Against that, I am afraid rather lengthy, even if rather selective, review of RT (Zimbabwe) and proceeding, for the moment, on the basis of RN (Zimbabwe), it is possible to make an assessment, in general terms, of whether a previous finding of lack of credibility is capable of being of any real relevance in deciding whether or not these appeals should be remitted.[36]I am of the opinion that such a finding of lack of credibility is indeed capable of being of real relevance in such a decision. I reject Mr Mahmood’s submissions (adopted by Ms Rutherford) to the contrary.[37]Mr Mahmood placed particular emphasis on the sentence in paragraph 66 of Lord Dyson’s judgment:
“But, as I have already said, the circumstances in Zimbabwe as described in RN mean that the fact that an applicant is lacking in credibility may be of little relevance on the key question of whether he will be able to demonstrate loyalty.”
This no doubt in part reflects what he had said earlier in paragraph 58 of his judgment (and also reflects what Lord Kerr was to say in paragraph 72 of the judgment).[38]Leaving aside that Lord Dyson used the words “may be”, I do not think this sentence, taken on its own, can have the significance Mr Mahmood would attach to it. It has to be set in context. And in my view the context in which Lord Dyson is here speaking is pre-supposing an affirmative answer to the first question that a claimant would be likely to be stopped and face interrogation (which itself also requires consideration of whether or not he would return to a milieu where political loyalty would be assumed) and, if so, whether he would face the difficulties faced by those not loyal to the regime in other parts of the country. Whether that presupposition is correct would depend upon the facts of the case. It also would presuppose an acceptance that the claimant was not a Zanu-PF loyalist or supporter of the regime.[39]In my view, a fair reading of RN (Zimbabwe) connotes that a person lacking in credibility on the important aspects of his account of events may, depending on the particular circumstances of the case, be found not to have shown that he is not in fact aligned to Zanu-PF or that he would be returning to a milieu where he is at real risk of interrogation whereby he cannot demonstrate loyalty.[40]Mr Mahmood submitted that it is elementary that a person who lies in some respects is not to be assumed to be lying in all respects. Further, there may be an understandable explanation for the lying. (These points find reflection in standard directions commonly given to juries in criminal trials). All that is true. But it does not provide a portmanteau answer to the issues of the kind arising in these cases as to whether or not there should be remittal: just because the scale of an appellant’s lies will depend on the circumstances of the particular case.[41]That lack of credibility may be of key importance in any given case seems to me to be borne out by the actual disposals of the four cases by the Supreme Court. RT was found to be credible. It was accepted that she was apolitical and that she would be returned to a milieu where there was a real risk she would face hostile questioning which she could not truthfully answer. Hence there was nothing left requiring remittal and her appeal was allowed. By way of contrast, the appeals of SM and AM were remitted in circumstances where each had been found not to be credible.[42]Mr Mahmood submitted – probably had to submit – that the appeals of SM and AM would have been allowed outright if only they had cross-appealed. There may be a query whether such a procedural point would have proved a conclusive bar had the Supreme Court otherwise thought it just not to remit. But, be that as it may, it is in any event plain that is not so. The lack of credibility was plainly critical to the decision to remit in each case. The Supreme Court could not and would not have expressly endorsed the Court of Appeal’s reasoning and decision in SM’s case were it otherwise. Likewise in AM.[43]It is true that, as Mr Mahmood emphasised, KM’s appeal was allowed outright, notwithstanding that an adverse credibility finding had been made by the tribunal. But there are two obvious answers to that point. i) First, it was in that case a fact “of central importance” that KM’s son had been granted asylum (as a MDC sympathiser) in the United Kingdom; and it had further been conceded in his case that there was a real risk this would become known on his return to Zimbabwe and that that might place him in an enhanced risk category. No precisely corresponding facts and concessions arise in the instant appeals before us. ii) Second, if Mr Mahmood’s arguments were right in principle, then KM should have succeeded on the basis that there was nothing left to remit, on the footing that any rehearing in the tribunal would be bound to result in a conclusion in his favour. But that was not the basis of the decision. Rather, in the light of the express concessions and on the assessment that KM’s case was “very strong”, remittal was rejected on the grounds that it “would not be just”.

Interests of Justice

[44]Counsel were in fact agreed that, even if it were to be held that the appeals would not be bound to succeed if remitted, nevertheless this court could in its discretion decline to remit if it considered the interests of justice so required. That, indeed, as noted immediately above, was the basis on which the Supreme Court declined to remit in the case of KM.[45]In this regard, Mr Mahmood submitted that there would be unfairness if the matters were to be remitted: and so, he said, they should not be. Had not the legal errors been made in the tribunal proceedings below, the appellants’ case would have been assessed by reference to the country guidance issued in RN (Zimbabwe): whereas remittal now would potentially mean, on usual principles, that the tribunal would deal with matters as they stand at the redetermination: see Ravichandran [1996] Imm AR 97. And that would potentially include the fresh country guidance determination which (Mr Mahmood feared) would be more unfavourable to asylum seekers from Zimbabwe: and which fear has, in any event, turned out to be justified.[46]Mr Thomann’s riposte was to the effect that there would be nothing unfair in the appeals being determined (if remitted) by reference to the newly restated country guidance. He referred to the decision of the Court of Appeal in MM (Zimbabwe) v SSHD [2012] EWCA Civ 135 in this regard: and submitted that it would be an undeserved windfall for the latest country guidance not to be applied to the appellants.[47]In my view there is not in itself any unfairness, conspicuous or otherwise, such as to justify refusal to remit, because the appeals would be decided, on remittal, in the light of the restated country guidance. The situation arising will have arisen by reason of asserted errors of law or approach on the part of the tribunals below and in the light of the clarification of the law by the Supreme Court in RT (Zimbabwe): not through the conduct, or ignoring of any policy, on the part of the Secretary of State. Indeed, so far as at least some of these appeals are concerned, the quashing (in the interim) of the decision in EM (Zimbabwe) – even if resulting from a failure in disclosure obligations on the part of the Secretary of State – was, from the point of view of those appellants, purely adventitious. If put in the language of legitimate expectation, the argument likewise has no substance and must be rejected in the case of all of these appellants.[48]In sum, whether any of these appeals should be remitted is a matter of appraisal by reference to the circumstances of each case. In making the decision, in my view it is appropriate to ask whether, on the current evidence and findings, the appeal in question would in any event be bound to succeed, and (even if it would not be bound to succeed) to ask whether it would be unjust in all the circumstances to remit.

Consideration of the individual appeals

[49]On that footing I turn to consider the individual appeals. Each, of course, has to be considered separately on its own facts. Counsel were rightly agreed that they did not stand or fall together. (1). SS[50]The facts of SS, in summary, are as follows.[51]SS was born on 7 January 1962. His home area in Zimbabwe was Plumtree in Matabeleland. As was found by Immigration Judge Pooler by determination dated 28 August 2008, he had supported the then opposition party Zapu (which then later merged with Zanu-PF) and in consequence experienced difficulties in his home area in Matabeleland, where he was detained for two weeks. He then worked in the printing trade for two years. He then went to work in Botswana, but frequently returned to visit his family in Bulawayo.[52]SS arrived in the United Kingdom on 15 October 2002 on a valid visitors visa, thereafter extended for various periods as a student visa. In early 2007 he was found to be in breach of his employment restrictions. He then claimed asylum on 1 June 2007, which was refused by the Secretary of State.[53]There were then protracted appeal hearings. His appeal was dismissed by Immigration Judge Forrester on 4 October 2007 (when he did not attend). The judge found “not a shred of evidence” of any persecution during his time in Zimbabwe and found that the entire claim was fabricated.[54]A review was granted (by reason of an arguable failure to consider Immigration Rule 395) but his claim was again rejected. His appeal was dismissed by Immigration Judge Pooler by determination dated 28 August 2008. The judge found that SS was of no adverse interest to the authorities when he left Zimbabwe and his sur place activities in the United Kingdom, such as they were, did not put him at risk either. Adverse credibility findings were made.[55]SS then put in further evidence of sur place activities. These were treated as a fresh claim. That was, nevertheless, again refused and his further appeal was rejected by Immigration Judge Cox in the First-tier Tribunal by determination dated 30 April 2010. She found that there was no reason to think that the previous findings of fact by Immigration Judge Pooler were affected by any error of law and held that they were not to be revisited. As to the fresh evidence before Immigration Judge Cox she accepted that, in the United Kingdom, SS had engaged in activities as, and continued to be, a member of the MDC while in the United Kingdom; but he had been “decreasingly involved” since the hearing before Immigration Judge Pooler. The judge found that these activities were solely to bolster a disingenuous asylum claim; the low level of activity was not such as to attract the attention of the authorities in Zimbabwe; and there was no real risk on return. SS was found not to be a witness of truth. The judge also considered RN (Zimbabwe) at some length. She considered the issue of imputed opinion. She noted that SS had family in a high density area of Harare, and would not have to return to Plumtree. The judge rejected as not credible SS’s assertion that he would not be able to demonstrate that he was a member or supporter of Zanu-PF or otherwise loyal to the regime. His connections with the now ruling party were noted.[56]Yet again there was an appeal. This was granted on the basis that arguably insufficient weight had been given to SS’s membership of the MDC in the United Kingdom. The appeal was heard in the Upper Tribunal by Designated Immigration Judge Coates, whose determination was dated 28 September 2010. He found, among other things, that Immigration Judge Cox had taken all relevant matters into account; the adverse findings of Immigration Judge Pooler had remained valid and subsisting; and the low level sur place activities with regard to the MDC were properly assessed as not likely to come to the attention of the authorities in Zimbabwe. Designated Immigration Judge Coates concluded that SS’s submissions involved a misreading of the guidance in RN (Zimbabwe) and that no material error of law had been shown.[57]Permission to appeal to the Court of Appeal was refused by the Upper Tribunal. Permission to appeal was granted by Sir Richard Buxton on 19 July 2011 on the basis that, having regard to RN (Zimbabwe), the ambit of the approach based on credibility raised a point for consideration and also on the basis of the subsequent developments in the RT (Zimbabwe) litigation as to whether a person should be expected to lie about his political beliefs.[58]In my view, that brief summary of the background demonstrates that SS cannot be said to be bound to succeed if the matter were remitted. True it is that (as explained by Lord Dyson and Lord Kerr) his want of credibility cannot readily be determinative of whether his protestations would be believed if he were stopped and interrogated. But that does not of itself address the prior question of the risk of his being stopped and interrogated. In the present case, the tribunal had assessed that no adverse political belief would be imputed to him: indeed his background in Zimbabwe had featured his positive support for Zapu. It is clear that the potential relevant risk factors were considered by the tribunal judge.[59]This does not, however, mean that the appeal should be dismissed outright. First, it may be necessary (among other things) to consider the true extent of SS’s political convictions: his sur place MDC activities were described as being solely to bolster his claim (as well as being found not likely to attract attention). The evidence could be consistent with him being in truth a continuing Zanu-PF supporter (and so not required to lie if questioned): but no express finding, either way, on that point has yet been made. Further, more consideration may be needed as to the milieu of his return, since that might bear on the risk of his being interrogated at all.[60]Mr Mahmood submitted that it would in any event be contrary to the interests of justice for the matter to be remitted for a further determination. It is true the proceedings have become very protracted. But in part this is attributable to SS: for example in not attending the first appeal hearing and latterly in raising fresh representations late in the day; and in persistently (as found) giving untrue evidence and in engaging in sur place activities solely for the purpose of boosting his asylum claim. Moreover, I am a very long way indeed from agreeing with Mr Mahmood’s assertion that SS’s case was a “strong” one.[61]In my view, therefore, his appeal should be remitted to the Upper Tribunal for determination. (2). JK[62]The facts of JK, in summary, are as follows.[63]JK was born on 13 December 1973 in Murewa, Mashonaland East. Between March 1994 and January 2002 he worked as a customs officer in Harare. He last lived in Mabvuku, a suburb of Harare.[64]JK arrived in the United Kingdom in 2002 on a student visa, subsequently extended. His wife joined him. There are two children, born in 1998 and 2006. He has three brothers in Harare. He first applied for asylum in 2007 on the expiry of his latest student visa. He claimed MDC activism in Zimbabwe and consequent persecution. This was rejected by the Secretary of State.[65]His appeal was rejected by Immigration Judge Jones in the First-tier Tribunal by determination dated 2 March 2010. The judge rejected his claim to have been an MDC member and to have been ill-treated in Zimbabwe. The judge rejected the authenticity of certain documents provided and rejected the claim that he had, while in the United Kingdom, attended a number of vigils outside the Zimbabwe High Commission. It was found that asylum simply was claimed “as a last resort” to stay in the United Kingdom.[66]Notwithstanding all those numerous adverse findings, the immigration judge nevertheless allowed the appeal. He did so after reminding himself of RN (Zimbabwe) on the basis of imputed opinion: he considered that there would be a real risk of challenge on return to his home area and an inability to demonstrate loyalty. Particular note was taken of what was said in paragraphs 231, 234 and 259 of RN (Zimbabwe).[67]Permission to appeal was granted to the Secretary of State on the basis that, in the light of the wholesale rejection of JK’s account, the immigration judge had failed to direct himself by reference to, in particular, paragraph 246 of RN (Zimbabwe) and also on the basis that, by working as a government customs officer, it could indeed reasonably be assumed that he could show loyalty to the regime.[68]The Upper Tribunal decided, by determination dated 6 June 2011, that there had, on the bases advanced and by reference to RN (Zimbabwe), been a material error of law on the part of the First-tier Tribunal. It was among other things held “with considerable hesitation” that there was insufficient evidential basis for Immigration Judge Jones’ conclusion that JK would not be able to demonstrate his loyalty to Zanu-PF on return. In my view, a proper basis was indeed made out for setting aside the decision of Judge Jones on the footing of a material error of law. The decision was set aside and a continuation hearing was directed, the findings of fact of Immigration Judge Jones being preserved: although in the event further oral evidence was permitted to be given by JK. At the continuation hearing, emphasis was placed by the Secretary of State on JK having been a customs officer in Harare and so would be one in respect of whom loyalty would be assumed. Reliance was also placed on EM (Zimbabwe). The conclusion was that the Secretary of State’s appeal should be allowed.[69]Permission to appeal was refused by the Upper Tribunal but was granted by Moses LJ after an oral hearing.[70]I would reject Mr Mahmood’s argument that JK’s appeal now should be allowed outright. The appeal was by no means assured of success in the light of RT (Zimbabwe) and the country guidance in RN (Zimbabwe), let alone that contained in EM (Zimbabwe) as now restated in CM (Zimbabwe). In the light of the finding that JK was a government customs officer for a number of years and one in whom loyalty would be assumed, and in the light of the adverse credibility findings, it is by no means to be accepted without further examination that he was not a Zanu-PF supporter, notwithstanding his sur place activities in the United Kingdom such as they were; or that he would (if stopped) be unable to demonstrate loyalty or be required to lie. Further (although the matter may need further investigation) the milieu from which he came also may suggest that he may not be at risk of being stopped and interrogated. But these further matters also indicate, in my view, that it likewise would not be right to dismiss this appeal outright.[71]I can see no basis for saying that it would in any event be unjust for the appeal not to be allowed outright but to be remitted. We were told in fact that SK has since been granted five years’ discretionary leave to remain: but I do not think that can alter the otherwise appropriate disposition. (3). JS[72]JS was born on 22nd April 1973 and was from New Mabvuku, a suburb of Harare. She came to the United Kingdom on 11 November 2001 as a visitor on her own passport and was granted further leave to remain as a student. She has three children in Zimbabwe (living variously with grandparents) and two sisters in Zimbabwe. After the final expiry of her grant of leave in 2008, she applied for asylum. This was rejected and she appealed. The determination of the First-tier Tribunal (Immigration Judge Chambers) was dated 7 September 2010.[73]JS claimed no past ill-treatment or persecution in Zimbabwe. It was found that she never had there been a member of the MDC and at the time she left she was of no interest to the authorities. There was some evidence of sur place activities in the United Kingdom: they were found to be “limited and minor”. It was found that she had not become an MDC member and would not bring attention upon herself.

The judge further found:

“I do not conclude that any situation will be forced upon her to lie or live discreetly”
. Her Article 8 claims were also rejected.[74]Permission to appeal was granted on the basis that it was arguable that it had not been sufficiently considered whether she could demonstrate support or loyalty and also on the proportionality issue under Article 8. The appeal was dismissed by the Upper Tribunal (Immigration Judge Robertson) by determination promulgated on 5 October 2011. The findings of fact below were accepted. No material error of law was identified. There was no evidence of ill-treatment of her or her family; and even if stopped, she would have no need to lie. Reference was made to RN (Zimbabwe). The Article 8 grounds were also dismissed.[75]The Upper Tribunal refused permission (in part noting that New Mabvuku was a medium density area and also now noting the decision in EM (Zimbabwe)). Permission was, however, granted by Sir Richard Buxton on 25 February 2012 on the asylum grounds (but not the Article 8 grounds). He considered it arguable that the Upper Tribunal had “given insufficient weight to the findings in paragraphs 230 to 231 of RN that a failed asylum seeker not associated with the regime would find it difficult to demonstrate loyalty” and may have overlooked “the risk that she would not simply have to give an account of her history but also express some sort of loyalty to the regime”.[76]Mr Thomann accepted before us that, in the light of RT (Zimbabwe), the Upper Tribunal should have engaged not just with the question of whether JS could explain her period of time in the United Kingdom but also whether she would need to lie as to her loyalty. He further noted that no findings as to JK’s political conviction were made (save that she was not an MDC member), even though the Secretary of State had concluded in her decision letter that her family was in fact aligned to the ruling party. Nor was any full consideration given to the milieu to which she would return and where her family had lived with no evidence of ill-treatment, which also bore on the risk of her being stopped and interrogated.[77]In my view this is plainly right. Mr Mahmood sought to say that her sur place activities meant she was at risk of being questioned and would then have to dissemble. But there was no finding that such (limited) sur place activities as she undertook had come or would come to the attention of the authorities, indeed the implication of Immigration Judge Chambers’ decision was to the contrary. Nor was there any finding that she was not, or would be perceived not to be, associated with the regime.[78]Given the circumstances, I do not think this appeal should be dismissed outright either. Accordingly this case in my view also should be remitted to the Upper Tribunal. I can see no injustice in so ordering in the circumstances of this case. (4). PN[79]PN was born on 11 December 1986. She arrived in the United Kingdom on 20 June 2003, apparently on an emergency travel document. Thereafter she remained unlawfully in the United Kingdom until arrested on 15 February 2010 for identity card offences. She then applied for asylum, which was refused by the Secretary of State.[80]Her appeal was the subject of a determination in the First-tier Tribunal by Immigration Judge Iqbal dated 16 October 2010. Wholesale adverse credibility findings were made. Having considered the evidence, he concluded that PN had not given a credible account of events in Zimbabwe. He found, rejecting her evidence, that she had not been politically active in the way asserted (whether in Zimbabwe or the United Kingdom), had no MDC connection, had not suffered any ill-treatment or persecution and that she was of no interest to the authorities. Having considered RN (Zimbabwe), the judge did not accept that she would be unable to demonstrate support for the present regime and concluded she would not be at real risk of persecution if returned. He also rejected Article 8 grounds relied on.[81]There was evidence that PN’s aunt had successfully claimed asylum in the United Kingdom and that her mother had a pending application (subsequently granted). Permission to appeal was granted on the basis that it was arguable that those factors bore on the potential risk to her, if returned, and she would be unable to show loyalty to the regime thereby. It was subsequently held that there was an error of law in this regard and a further, second-stage, hearing was directed.[82]By determination promulgated on 11 November 2011 Senior Immigration Judge Hanson, in the Upper Tribunal, dismissed the appeal. In a detailed decision, he found that it was not shown that there was any credible risk to PN on return as she had no adverse profile, actual or imputed, and it was not shown her family name would be on any list. The dismissal of the Article 8 grounds was preserved. In reaching his conclusions, the Upper Tribunal Judge relied extensively on the country guidance decision in EM (Zimbabwe).[83]Permission to appeal was refused by the Upper Tribunal and by Maurice Kay LJ on the papers. It was granted by Sullivan LJ, after an oral hearing on 30 November 2012 in the aftermath of the Supreme Court decision in RT (Zimbabwe).[84]Mr Thomann submitted that PN’s case was not bound to succeed. Indeed, in the light of EM (Zimbabwe), as now endorsed by CM (Zimbabwe) it was, he has since said, bound to fail.There had been no finding that the aunt’s activities had put PN at risk; PN’s evidence of persecution had been rejected as not credible; and there was a lack of evidence of any adverse interest in family members. He further pointed out that there was no finding as to her actual political convictions. That is true. But, in this particular case, given the position with regard to the aunt and mother, and whilst acknowledging PN was not found to be an active supporter of the MDC, it may be queried whether it is likely that it would be found that PN herself was a supporter of Zanu-PF. Rather stronger, in my view, was Mr Thomann’s submission with regard to the safety of the milieu to which she potentially would return (Bulawayo) and the need for appropriate findings in that regard: which would bear on the risk of her being stopped and interrogated.[85]One can see some force in Mr Mahmood’s arguments in saying that the appeal should be allowed, at all events if RN (Zimbabwe) were the applicable country guidance: especially when PN’s mother has since been held to have been politically active for the MDC in Zimbabwe and has become known to the authorities. But in my view, where PN’s own evidence in all material respects was disbelieved and where (in the light of RT (Zimbabwe)) it can be said that further findings were needed, including on the issue of milieu, one cannot say that the appeal would be bound to succeed. Mr Mahmood’s points would, of course, be much less persuasive on the footing that EM (Zimbabwe), as restated in CM (Zimbabwe), was the applicable country guidance.[86]Mr Mahmood did place emphasis on the treatment of the KM case in RT (Zimbabwe), stressing that the Supreme Court had not thought it just to remit in the light of the successful asylum claim of KM’s son. But that was in the light of the concessions made in that case, which are not made before us in the present case.[87]Accordingly, I think that this case should be remitted: there is no injustice in so ordering, in all the circumstances. (5). BC[88]This is the one case where the Secretary of State at no stage proposed remittal but, instead, throughout had said that the appeal should be dismissed: on the basis that on any view there had been no error of law in the tribunal decision.[89]BC was born on 5 January 1981 and lived in Mandara (a suburb of Harare) until 2000. She came to the United Kingdom on 13 June 2000 on a visitor visa. Thereafter leave to remain was extended to enable her to complete her studies for a degree. Her husband visited on a number of occasions. BC had a child on 4 January 2010. The husband made an asylum application (with BC as his dependant) in April 2009. That was rejected, the rejection being upheld on appeal. BC then herself made an asylum claim on 16 November 2010, which the Secretary of State rejected.[90]By determination dated 14 March 2011 Immigration Judge Robertson, sitting in the First-tier Tribunal, rejected BC’s appeal. It had transpired that in 2010 BC and her husband, while in the United Kingdom, had joined the MDC and BC was elected as a branch secretary and treasurer. The Immigration Judge found that this was designed to boost the asylum claim. The Immigration Judge found, moreover, that the various sur place activities and positions held would not result in BC coming to the attention of the authorities in Zimbabwe. The Immigration Judge further found that, even if they did come to their attention, there was no real likelihood of risk because of her sur place activities. This was because BC’s husband had past connections with the government and his parents had connections with the civil service (at the husband’s appeal, indeed, the parents had been found to be Zanu-PF loyalists): and so the authorities would be “likely…to regard her activities as insincere”. In reaching her overall conclusion, the Immigration Judge had regard to the Court of Appeal decision in RT (Zimbabwe) and the country guidance in RN (Zimbabwe). Article 8 claims were also rejected.[91]Permission to appeal was granted, essentially on the basis that the Immigration Judge was arguably wrong to have placed extensive reliance on the findings of the tribunal judge who had previously determined the husband’s appeal. In the Upper Tribunal, Deputy Upper Tribunal Judge Juss, by promulgation dated 1 October 2011, dismissed the appeal. He found that there was no material error of law. The Immigration Judge had been entitled to place reliance on the earlier determination in assessing the husband’s evidence: and had made independent findings of her own with regard to BC specifically. The Deputy Upper Tribunal Judge noted, and clearly accepted, the finding that even if the sur place activities did become known they would be likely to be accepted as insincere.[92]Permission to appeal was refused by the Upper Tribunal. Moses LJ refused an application for permission to appeal on the papers. Permission was eventually granted, after an oral hearing, by Sullivan LJ on 21 November 2012 in the aftermath of the Supreme Court decision in RT (Zimbabwe). In addition, BC has indicated that she also wished to argue that the best interests of the child required proper assessment.[93]Given the findings of fact in the tribunal I have no difficulty at all in rejecting Mr Mahmood’s argument that the appeal should be allowed outright. The position is demonstrably different from that in the KM appeal as decided in RT (Zimbabwe), on which (yet again) he relied.[94]Altogether closer to the line in this case was Mr Thomann’s submission that the appeal should be dismissed. His point, even by reference to RT (Zimbabwe) and RN (Zimbabwe), was that BC, even if her sur place activities became known (and the finding was that they would not), would be at no risk: because her profile – through her husband and his family – would be of perceived and assumed loyalty, as the Immigration Judge found. Moreover, the milieu from which she came supported that. Thus she would not be at any real risk of being stopped and interrogated. This was even more strongly so, he subsequently has submitted, in the light of CM (Zimbabwe).[95]I see the force in this. But, on balance, I think this case too should be remitted. It is true that the Immigration Judge found that the sur place activities would not become known. But the Immigration Judge did not, apparently, regard that as conclusive and went on to say that in any event the authorities would be “likely” to find such activities as “insincere” (a finding endorsed by Deputy Upper Tribunal Judge Juss). How such a finding as to what is likely can be made in such a situation is unclear to me. Indeed the approach – at all events arguably – comes close, by analogy, to following the line of speculative reasoning specifically disapproved by Lord Kerr in paragraph 72 of RT (Zimbabwe). While this objection was not formally taken in the grounds of appeal, it was noted by Senior Immigration Judge Jarvis (in refusing permission to appeal in the Court of Appeal) as arguably “something of a leap” in the absence of supporting evidence. I note also that the Immigration Judge did not (because of the view she took) make a finding as to whether BC was indeed a Zanu-PF supporter in reality and so did not consider whether she would be required to lie or be unable to demonstrate loyalty if stopped.[96]Overall, therefore, I think justice requires that the case be remitted for determination. It will also be a matter for the Upper Tribunal as to how it deals with the proposed new ground based on the best interests of the child. (6). SM[97]SM was born on 14 July 1954. As found, he was a “war veteran” active between 1971 and 1980. He was then employed as a government driver in the intelligence unit for a number of years. He last resided in Warren Park, a suburb of Harare, before coming to the United Kingdom on 16 December 2007 on a visit visa. He claimed asylum on 27 March 2008, which claim was rejected by the Secretary of State.[98]His appeal was heard in the First-tier Tribunal by Immigration Judge Meah who, by determination dated 22 July 2008, dismissed it. Adverse findings of credibility were made as to SM’s account of events. Documentation proffered was rejected as not authentic. The judge rejected claims of ill-treatment in Zimbabwe by reason of MDC support. The judge found that if he had converted to being an MDC supporter in Zimbabwe (“which I am not entirely satisfied is the case”) this was at a very low level and he had no particular profile. He was able to leave Zimbabwe without any problem. It was accepted that SM had involved himself in some very limited MDC activities in the United Kingdom, in particular attendance at some vigils, but it was found that these would not have come to the attention of the authorities. Overall, the Immigration Judge took the view that the claim for asylum was a “fabrication and opportunistic in its timing” and that SM would be of no interest if returned.[99]A second claim for asylum was made on 4 June 2010, which was rejected. By determination dated 2 June 2011, Immigration Judge Deavin dismissed SM’s further appeal, having considered the fresh evidence advanced. He was very critical of it. He also rejected further Article 8 grounds. Permission to appeal was granted, among other things, by reference to the need for more consideration of the interests of SM’s grandchildren. The decision was remade but the appeal dismissed by Immigration Judge Hall after a hearing on 26 September 2011. It was concluded, in the light of the then country guidance in EM (Zimbabwe), that SM could safely return to Harare. It was noted that his daughter and a son (who was serving in the British Army) had returned to Zimbabwe without any problems. The Article 8 arguments were also rejected, for cogent reasons.[100]Permission to appeal was refused by the Upper Tribunal and by Moses LJ on the papers. After an oral hearing, permission was granted by Sullivan LJ on 21 November 2011, again in the aftermath of the Supreme Court decision in RT (Zimbabwe).[101]I reject Mr Mahmood’s argument that the appeal should be allowed: essentially for reasons corresponding to the other cases. It is to be noted that SM had accepted that he had once been a Zanu-PF member and had formerly worked for the government in its security unit. I do not, on the other hand, accept Mr Thomann’s submission that the appeal should be dismissed outright. It may be that findings are required as to whether or not he was in truth still a Zanu-PF supporter, or at least likely to be perceived as such: and to explore whether he would be at any real risk of being stopped and interrogated or (if so) whether he would be required to lie or be unable to demonstrate loyalty. Questions of any risk would need also to be assessed by appropriate findings as to the milieu to which he would be returned.[102]Given the sequence of events, I can see no residual injustice in directing remittal of this asylum appeal. As to the Article 8 grounds, I can see no valid basis for interfering with Immigration Judge Hall’s decision on the point: the appeal in that respect stands dismissed. (7). SC[103]We were told that the Secretary of State has suggested a stay of SC’s asylum claim, pending consideration of an application for family reunion with his partner and daughter (who apparently have now been granted refugee status). Nevertheless, the issue raised on the appeal has still to be decided.[104]SC was born on 10 February 1981. He last lived in Old Mabvuku, a suburb of Harare, before coming to the United Kingdom in August 2001 on a visitor visa. He unlawfully overstayed. He came to the attention of UKBA at the beginning of 2009 and then applied for asylum on 9 January 2009. His application was refused in the course of 2010. An appeal was dismissed in the First-tier Tribunal by determination of Immigration Judge Glossop dated 13 August 2010.[105]The Immigration Judge roundly rejected the claims of SC to have been a political activist on behalf of the MDC in Zimbabwe and that he had been mistreated because of that. It was found that his account had been “put together” and was not credible. It was accepted that in the United Kingdom SC had joined the South Bedfordshire branch of the MDC and demonstrated on occasion outside the Zimbabwean High Commission; but it was found that his sur place activities were not such as would come to the attention of the authorities. The judge in this case had been provided with additional updated country material, postdating 2008; overall, he found that SC would not be at risk if returned. Article 8 claims were also dismissed.[106]Permission to appeal was granted, in part on the footing that arguably the Immigration Judge had wrongly departed from the country guidance in RN (Zimbabwe) and also on the footing that insufficient findings were made as to his involvement with the MDC in the United Kingdom.[107]By determination dated 28 February 2011 Immigration Judge Harris (sitting as a Deputy Upper Tribunal Judge) dismissed the appeal. He found no material error of law. He considered the adverse findings of credibility were clear and justified and that the principles of RN (Zimbabwe) had been properly applied. The finding that SC’s sur place activities would not become known to the authorities was justified.[108]Permission to appeal was refused by the Upper Tribunal and by Elias LJ on the papers. Permission was granted by Ward LJ after an oral hearing on 9 November 2011. He regarded the challenge as to the findings on the sur place activities as “pretty tenuous”. On the question of risk, in the light of HJ (Iran) which had been cited to him by Ms Rutherford, he said:
“I would have thought myself that if you are not at risk, you are not at risk of being challenged by anybody, but that may not be the effect of the country guidance. There is a point here, though its merits seem impossibly thin…”
Since then, of course, reliance has been sought to be placed on behalf of SC on the subsequently handed down decision of the Supreme Court in RT (Zimbabwe).[109]Mr Thomann agreed that neither the First-tier Tribunal nor the Upper Tribunal engaged expressly with the question of whether SC would be required to lie to assure his safety. It may well be said – as Ward LJ did – that a first step would be to assess whether he would be at risk of being stopped and interrogated: and it could be said that the findings of fact thus far tend to gainsay such a risk.[110]Ms Rutherford nevertheless valiantly submitted that the appeal should be allowed outright and that, applying RT (Zimbabwe) and RN (Zimbabwe), SC is entitled to refugee status. I do not agree. It cannot possibly be said that the appeal, if remitted, would be bound to succeed: indeed the findings thus far made suggest serious problems for SC’s case. In any event, the true extent of SC’s political convictions remains to be explored, as does a full assessment of the milieu to which he would be returned. It may also be noted that he has a mother and siblings and family network in Zimbabwe, who it is said have suffered no persecution; and the Immigration Judge had found it would be safe for him to return to them. At the same time, I do not feel able to accept Mr Thomann’s subsequent submission that the appeal would be bound to fail.[111]I can see no other circumstances which would render it unjust to order remittal. It may or may not be the case that the family reunion considerations will in the interim give rise to some kind of compromise: but that is not a matter for this court.

CM (Zimbabwe)

[112]As I have indicated, this determination of the Upper Tribunal (Blake J, Upper Tribunal Judge Lane and Deputy Upper Tribunal Judge Campbell) was promulgated on 31st January 2013; and the parties have lodged further written submissions in the light of it.[113]It is of course a most detailed determination, with voluminous appendices.[114]It is not appropriate here to engage in a review of its findings and conclusions. But some points do need to be noted for present purposes: i) The country guidance in EM (Zimbabwe) on the position in Zimbabwe as at the end of January 2011 was not vitiated. It was held that the tribunal had there been entitled to find that there had been durable change since RN (Zimbabwe). ii) The only change required to the EM (Zimbabwe) country guidance arose from the Supreme Court decision in RT (Zimbabwe): see para 214. iii) It was found that there was cogent evidence of a downward trend in politically motivated human rights violations in Zimbabwe; and there was no evidence to suggest that the nationwide findings made in RN (Zimbabwe) with regard to the risk of having to show loyalty to Zanu-PF continued to apply (paras 194-195).[115]As will be gathered, my view is, in agreement with Mr Thomann’s submissions, that this determination in CM (Zimbabwe), in effect endorsing the country guidance given in EM (Zimbabwe), of itself renders untenable the contention of Mr Mahmood that the appeals would be bound to succeed if remitted. However, as will also be gathered from what I have said above in each of the cases, it is in any event my conclusion that they would not have been bound to succeed in the light of RT (Zimbabwe), even if RN (Zimbabwe) had been still treated as the sole applicable country guidance.[116]Mr Mahmood and Ms Rutherford sought to maintain in their subsequent written submissions their argument that there would be conspicuous unfairness to the appellants in remitting the appeals, with the prospect of the country guidance set out in EM (Zimbabwe), as endorsed in CM (Zimbabwe), being then, on usual Ravichandran principles, being applied. For the reasons given above, I do not accept that at all. It is, moreover, now established by CM (Zimbabwe) that – notwithstanding the quashing of the original determination because of the disclosure points – the country guidance principles set out in EM (Zimbabwe) were, to all effects, valid as at January 2011: so in those particular cases where the tribunal judges expressly relied on EM (Zimbabwe) it can also now be seen that there will have been no error in such reliance. The position for those appeals is, if anything, a fortiori to that in MM (Zimbabwe).[117]Mr Thomann, very fairly, put his case moderately in his subsequent written submissions that all the appeals should now be dismissed outright. He said that the determination in CM (Zimbabwe) “may” persuade the court that the appeals should be dismissed outright. As will be gathered from what I have said, he made, by reference to each appeal, points about the individual profiles of each appellant; the (now established) low level of risk if returned to areas such as Matabeleland; the position in high and low density areas in Harare; and so on.[118]I have, as will also be gathered, considered these points in assessing each of the appeals. Clearly there are – in the light now of CM (Zimbabwe) – potentially formidable obstacles in the way of each appellant. Even so, I have remained of the view that the proper course is for each case to be remitted. Their cases remain to be assessed on their individual facts, in the light of RT (Zimbabwe) as well as of the country guidance contained in EM (Zimbabwe) as restated in CM (Zimbabwe). Having reached that view, I think it better to say no more.[119]Mr Mahmood did state, in his written submissions, that a number of the appellants had “up to date” evidence (not specified) which would bear on the outcome of the appeals, if remitted, but which the appellants have thus far not needed to deploy. That is not a matter for us. But the point can only operate at least to reinforce a conclusion that remittal is fair.

Conclusion

[120]I would for my part order that each appeal be remitted to the Upper Tribunal for re-determination.[121]It had seemed convenient – although how convenient it has turned out to be I do not know – to list all these seven appeals before us, at one hearing. Perhaps needless to say, it will be a matter for the Upper Tribunal as to how each of these appeals is hereafter to be determined and to give any necessary case management and other directions. It will also be for the Upper Tribunal to review and decide what further or other evidence may be permitted to be adduced. It will be clearly understood that no further argument is available to be maintained by any of these appellants before the Upper Tribunal, whether based on any assertion of unfairness or legitimate expectation or otherwise, to the effect that RN (Zimbabwe) remains the only country guidance to which the Upper Tribunal may have regard. The Upper Tribunal is free to have regard to the latest country guidance as stated in EM (Zimbabwe) and restated in CM (Zimbabwe) – subject only to the outcome of any appeal against that decision in CM (Zimbabwe) – in the light of all the other evidence before it.[122]I agree.[123]I also agree.

Cited in 1 later judgment