Harverye v The Secretary of State for the Home Department [2018] EWCA Civ 2848

“5. Mr Harverye is a citizen of Zimbabwe who was born on the 22nd April 1991. He is of mixed race as are his mother and father. He arrived in the United Kingdom on the 18th November 1998 as the dependant of his mother who had married a British citizen. He was granted Indefinite Leave to Remain on 29th January 2001 although an application for naturalisation was refused on the 31st May 2007 as a result of his personal conduct. 6. Mr Harverye has a criminal record which shows two offences against the person between 2008-2009, three theft and kindred offences between 2005 and 2008, one offence relating to the police/courts/prisons in 2009 and six miscellaneous offences between 2008-2009. He received his first reprimand/caution in 2004 for common assault. Details of those convictions are as follows: … 8th June 2009 Nottingham Crown Court – Causing grievous bodily harm. Offence committed on bail. Sixty-six months detention in a Young Offenders Institution. 7. It is as a result of the last offence, for which he received a five and a half year prison sentence that Mr Harverye was made the subject of a deportation order pursuant to UK Borders Act 2007. It was his appeal against the making of the automatic deportation order which was considered by the First-tier Tribunal. 8. The sentencing judge, HHJ Bennett, sitting at the Nottingham Crown Court noted that Mr Harverye was not of good character and his guilty plea but in relation to the offence stated: “What you actually did, if you analyse it, in her own home, is you attacked [the victim]; you abused her, you mutilated her, you intimidated her and you humiliated her. All that over a long period of time. So although I am quite satisfied, as I have said to your counsel, you did not go there with the intention of carrying out this kind of attack, the fact is when you saw the opportunity after opportunity after opportunity you took it. Twice you poured boiling water over her. One has only to look at the photographs to realise the extent of that and the consequence is she is scarred for life and had to undergo surgery. She will never get back what she had before you did that to her, so far as her body is concerned never mind the psychological damage. You used a melted plastic bottle and stuck it in her neck. That is absolutely awful. Then as if that was not bad enough, you humiliated her by trying to her to strip and dance in front of the group when she was injured in this terrible way and warned her not to go to the police and threatened her. That is a list, I am afraid, of extremely aggravating factors. The result is that if you had been convicted for doing that at the hands of a jury I would undoubtedly have given you 9 years in a Young Offenders Institute. As it is, with mitigation, I shall give you 5 ½. So you get your full discount and six months off the balance of the mitigating features….. I can pass no less for something as horrific as this.” 9. Mr Harverye has admitted he was a drug dealer. 10. As a result of his conviction Mr Harverye was excluded from the protection of the Refugee Convention and it was found he had failed to rebut the presumption that he constituted a danger to the community. The finding of the First-tier Tribunal in this regard was not challenged on appeal.” (Determination 2013) “What you actually did, if you analyse it, in her own home, is you attacked [the victim]; you abused her, you mutilated her, you intimidated her and you humiliated her. All that over a long period of time. So although I am quite satisfied, as I have said to your counsel, you did not go there with the intention of carrying out this kind of attack, the fact is when you saw the opportunity after opportunity after opportunity you took it. Twice you poured boiling water over her. One has only to look at the photographs to realise the extent of that and the consequence is she is scarred for life and had to undergo surgery. She will never get back what she had before you did that to her, so far as her body is concerned never mind the psychological damage. You used a melted plastic bottle and stuck it in her neck. That is absolutely awful. Then as if that was not bad enough, you humiliated her by trying to her to strip and dance in front of the group when she was injured in this terrible way and warned her not to go to the police and threatened her. That is a list, I am afraid, of extremely aggravating factors. The result is that if you had been convicted for doing that at the hands of a jury I would undoubtedly have given you 9 years in a Young Offenders Institute. As it is, with mitigation, I shall give you 5 ½. So you get your full discount and six months off the balance of the mitigating features….. I can pass no less for something as horrific as this.” 4. The first decision to deport was served on 5 October 2011. The Appellant successfully appealed this decision to the First-tier Tribunal, who upheld his claim under Article 3 of the European Court of Human Rights, in a determination of 22 February 2012 [“F-tT1”]. This was appealed by the Respondent to the Upper Tribunal (Immigration Appeals Chamber), resulting in the First Determination of UTJ Hanson [“UT1”]. 5. In that decision, the Upper Tribunal rejected many of the arguments advanced by the Appellant. There was no issue that the Appellant was a “foreign criminal” and therefore no issue that the obligation to deport arose, unless a statutory exception precluded deportation. Then and thereafter, the case has concerned the application of an exception, based on the existence or otherwise of an Article 3 risk to the Appellant. The Upper Tribunal relied on the Country Guidance given in EM and Others (Returnees) Zimbabwe CG [2011] UKUT 98 (IAC), as refined by the Supreme Court decision in RT (Zimbabwe) [2012] UKSC 38, and on the guidance in CM Zimbabwe CG [2013] UKUT 59. UTJ Hanson rejected the claim that the Appellant would face an Article 3 risk on return at the airport, rejected the claim that the Appellant would be returned to Zimbabwe destitute, rejected any Article 8 claim based on either family life or private life, and rejected a claim that the Appellant would be stateless. However, he concluded that, because of the particular situation prevalent at the time, the Appellant would have to remain in Harare, and therefore concluded that an Article 3 risk was established. 6. The express basis of that decision is of importance. Judge Hanson emphasised that the Appellant had no political profile. However, he concluded that the Appellant would, at that time, likely be unable to move to Bulawayo, or to Matabeleland, where there were such family connections as he had. He would likely be constrained to remain in Harare and, although he would not be destitute, his limited means would be likely to require him to live in a cheaper “high density” area of Harare. Judge Hanson analysed the consequences of this as follows: “55. It is likely that his limited resources will require him to seek lodgings in a high density area where housing is cheaper but such areas in Harare were considered in CM the findings in EM (sic) where it was found that whilst the socio-economic situation in high-density areas is more challenging, in general a person without ZANU-PF connections will not face significant problems there (including a “loyalty test”), unless he or she has a significant MDC profile, which might cause him or her to feature on a list of those targeted for harassment, or would otherwise engage in political activities likely to attract the adverse attention of ZANU-PF, or would be reasonably likely to engage in such activities, but for a fear of thereby coming to the adverse attention of ZANU-PF. Mr Harverye has no such significant profile but his case must be considered at the date of hearing, when the elections are said to be imminent in Zimbabwe. In this regards Dr Kibble refers to the constitutional changes and since the hearing the Constitutional Court in Zimbabwe has rejected a joint application by the President and Prime Minister in Zimbabwe to delay the elections. They must therefore occur before the end of July 2013. … 56. If Mr Harverye was to be challenged in other than English he is unlikely to understand what he is being asked and if this is a challenge to demonstrate loyalty, which he will not be able to do, he is at risk of beatings and ill-treatment. The fact he has no ZANU-PF party card and is unlikely to know the slogans and constantly repeated radio jingles means it will be difficult if not impossible for him to prove loyalty. Dr Jeater refers to the unemployed joining the ZANU-PF militia but she also states that orders are given in the vernacular languages and such groups have a reputation for beating and torturing their own members as well as other citizens [para 3.3, page 57 A’s bundle]. 57. The Tribunal in CM also refers to the Chipangano. This group has been described as ‘a brutal band of thugs formed by Zanu (PF) in the 1980s and now running a brazen murder, violence and extortion racket that started as a hit squad for the party but which has become a lucrative business’. An article broadcast on SW Africa Radio on 13th April 2012 reported that the violent ZANU PF youth gang that has terrorised residents of Mbare suburb in Harare has reportedly started campaigning for the party, forcing innocent civilians to reveal their personal details and ordering them to vote for Robert Mugabe in the next election. The Chipangano gang, who operate with impunity and with the support of top ZANU PF officials, have been regularly forcing local residents, vendors and passersby to attend ZANU PF rallies held on open grounds in the area. 58. As it appears likely Mr Harverye will have to remain in Harare he will have to seek accommodation in a high density area such as Mbare as he will not have the economic resources to live elsewhere. He will have to seek entry into the informal economy which is controlled by Chipangano. He is therefore likely to be identified as a newcomer and challenged in relation to his political leanings by members of this group. If he is unable to demonstrate loyalty there is a real risk of ill-treatment sufficient to breach the high threshold of Article 3 in light of the imminent elections. 59. ... I do not find the evidence he seeks to rely upon is sufficient to allow me to depart from any of the existing country guidance case law. I therefore would not find Mr Harverye has proved that the United Kingdom will be in breach of its obligations under Article 3 ECHR should he be deported from the United Kingdom and returned to Zimbabwe with the exception of the real risk of such a breach as a result of the heightened levels of violence and associated risks at this election time, recognised in case law, and the unique factors relating to Mr Harvey (sic) such as his lack of language skills. If the elections period passes and violence abates and the position is as per CM the Secretary of State will be able to reconsider her position. It is the timing and as Miss Mair submitted, the combination of Mr Harvey’s (sic) characteristics, that create the real risk at this time.” characteristics, that create the real risk at this time.”

“12. You appealed against the deportation decision on 19 October 2011, which was allowed by the First-tier Tribunal on 23 February 2012, under Articles 2 and 3 of the ECHR due to the country situation in Zimbabwe. The Home Office was granted permission to appeal against the allowed appeal on 5 April 2014. However, the Upper-tier Tribunal upheld the Firsttier Tribunal’s determination on 17 July 2013 and gave recommendation that: “If the elections period passes and violence abates and the position is as per CM the Secretary of State will be able to reconsider her position”. 13. You were granted bail on 27 January 2012; but recalled on licence to serve the remainder of your custodial sentence on 27 July 2012, because you breached your licence condition in contacting the victim of your offence. 14. In light of the Upper-tier Tribunal’s determination and your conduct which resulted in you being recalled to prison whilst on licence, your case was reviewed and a decision was made on 1 July 2014, to resume deportation action against you. A new Notice of liability to deportation action was served to you on 1 July 2014. You were served with the Liability Notice on 30 July 2014 and your legal representatives responded by submitting the completed questionnaire along with submissions on 6 August 2014.” 9. The Notice of Decision proceeds to a summary of the history, a review of whether “very compelling circumstances” exist so as to prevent deportation, and a review of the Article 8 claim. The Secretary of State reviewed the means which would be available to the Appellant by way of financial support, concluding that he would be in receipt of a higher income than 9.75m of the population of Zimbabwe. The Notice contains quotations from the appeal determination of July 2013, including the relevant passage from the final paragraph 59, set out above, in which UTJ Hanson addressed reconsideration by the Respondent “if the elections period passes and violence abates”. 10. The Notice continued, suggesting that the Tribunal (meaning the decision in UT1) had concluded against the Appellant on Article 3. That was an error. 11. The Notice then proceeded to a review of the Appellant’s circumstances and “claims to be vulnerable on return”, again rejecting destitution, and any claim under Article 8. The Notice recited a summary of the Facilitated Returns Scheme now available to the Appellant. This meant that, if he made a successful application, he “could be eligible for up to £750 … [which] could be used to relocate to Zimbabwe to secure housing”. 12. The Notice of Decision does not add any reasoning in relation to Article 3. The Second Appeals: 2015/2016 13. The Appellant succeeded before the First-tier Tribunal, for the reasons set down in the determination of Judge Place of 3 March 2015 [“F-tT2”]. Judge Place summarised concisely the submissions made to her by Ms Mair for the Appellant. The first was that the second decision to deport “was not in accordance with the law as there has been no new conviction to trigger a further decision” (paragraph 11). The second was that, “by analogy with Refugee Convention cases, … the burden of showing that there has been a relevant change of circumstances is on the Respondent” (paragraph 12). Thirdly, it was submitted to Judge Place that “on Devaseelan principles” (Devaseelan v SSHD [2002] UKIAT 702; [2003] Imm AR 1), the decision of UTJ Hanson (meaning “UT1”) – “13. …is the starting point for me … Though Judge Hanson found that the Appellant was born in Bulawayo, he also found that he had no established roots there and would be likely to have to live in a high density area of Harare. She argued that Judge Hanson had decided that the Appellant was at risk both because of the elections and because of the ascendancy of the group called Chipangano. 14. She argued that the Respondent has not adduced any evidence that the conditions in Zimbabwe have improved and argued from the CIG Report that much remains the same: the Mugabe regime is still in power, there is still violence and the security forces continue to act with impunity.” 14. Comparison of the index of documents for the first hearing before UTJ Hanson (“UT1”) and the hearing before Judge Place (“F-tT2”) demonstrates that there was no new evidence before F-tT2. The only additional item, produced at the hearing, was the CIG report of October 2014 (see below). Ms Mair relies on this to demonstrate that no new evidence or Country Guidance was placed before Judge Place in F-tT2. 15. Judge Place accepted the first submission that, without a fresh conviction, the Second Decision was unlawful. She also commented that: “Despite being given every opportunity to do so, the Respondent has not explained on what basis she has issued a further Deportation Order in respect of the same offence.” 16. Judge Place went on to consider the remaining submissions “in case I am wrong” on the first point. She concluded that “the burden was on the Respondent to show a change of circumstances in Zimbabwe sufficient to justify departing from the Upper Tribunal’s decision of July 2013”

“19. Judge Hanson found (paragraph 58) that the Appellant would have to seek entry into the informal economy which is controlled by Chipangano. The Respondent has adduced no evidence that that situation has changed. I find that the Appellant would still face the same risks of being identified as a newcomer. Judge Hanson found that, because of the imminent elections, the Appellant would be at risk if, as was probable, he could not demonstrate loyalty to Zanu-PF. 20. Although Judge Hanson’s findings were closely linked to the situation in Zimbabwe in the pre-election period, I find that it does not follow that, simply because the elections are over, the Appellant would not be at the same risk. He would be living in the same area, controlled by the same group, Chipangano. The Respondent has not brought any evidence to my attention to show that Chipangano have changed their ways. The CIG Report shows that Zanu-PF violence continues in Zimbabwe and that, if anything, the activities of Chipangano are increasing (see, for example, section 2.3.11 to section 2.3.13). 21. Judge Hanson drew attention to the fact that there were heightened levels of violence and associated risks at the time of the elections. The Respondent has not shown, on a balance of probabilities, that those heightened levels have since reduced. I find that the Respondent has not shown that there are new circumstances which now alter Judge Hanson’s findings that the Appellant would be at risk of a breach of his Article 3 rights if he were returned to Zimbabwe. Judge Hanson’s comment at paragraph 59 of his decision had 3 limbs: if the election period passes and (my emphasis) violence abates and the position is as per CM. The Respondent has only shown the first limb to be satisfied. I therefore find that the Respondent’s decision was incorrect and I allow the appeal.” 17. The Respondent appealed once more to the Upper Tribunal. Ms Mair places emphasis on what she says are the limited grounds advanced. The first ground was that Judge Place erred in law by failing “to identify any specific defect in the terms of the deportation order”

“(7) The application of an exception— (a) does not prevent the making of a deportation order; (b) results in it being assumed neither that deportation of the person concerned is conducive to the public good nor that it is not conducive to the public good;” (a) does not prevent the making of a deportation order; (b) results in it being assumed neither that deportation of the person concerned is conducive to the public good nor that it is not conducive to the public good;”

“(2) Exception 1 is where removal (my emphasis) of the foreign criminal in pursuance of the deportation order would breach – (a) a person’s Convention rights, or (b) the United Kingdom’s obligations under the Refugee Convention” (a) a person’s Convention rights, or (b) the United Kingdom’s obligations under the Refugee Convention”

“(4) The Secretary of State may withdraw a decision that section 32(5) applies, or revoke a deportation order made in accordance with section 32(5), for the purpose of— (a) taking action under the Immigration Acts or rules made under section 3 of the Immigration Act 1971 (c.77) (immigration rules), and (b) subsequently taking a new decision that section 32(5) applies and making a deportation order in accordance with section 32(5).”

“(30) If a valid deportation order has been made pursuant to the 2007 Act but it is found an exception applies, section 33(7) still provides that section 32(4) applies i.e. that the deportation of a foreign criminal is conducive to the public good. If the situation changes such that the exception relied upon in the original appeal no longer exists, it is arguable the structure of the statutory scheme permits the Secretary of State to issue a further decision. A finding that an exception exists is not a finding in perpetuity but based upon the situation appertaining at the date of the decision. What is of vital importance is recognition of the fact the fresh decision is a further immigration decision that gives rise to a further right of appeal, unless certified.”

“47. It was accepted in the earlier determination that Mr Harverye originates from Bulawayo although he has not lived there for a considerable number of years. It was accepted, and is still the case, that returnees to Bulawayo will in general not suffer the adverse attention of the Zanu-PF, including from the security forces even if they have a significant MDC profile. Mr Harverye has no adverse political profile. 48. The key finding in the original decision was that as a result of the timing of the appeal, and the heightened tensions at the time of an election, Mr Harverye could not be expected to travel to Bulawayo for if he was challenged and could not show loyalty he was likely to be ill-treated. As a result he would be forced to remain in Harare where the risks identified in the decision would manifest themselves. 49. The current evidence made available does not show that the situation in Zimbabwe is the same as that which prevailed when the original decision was written. As such there was an obligation upon the Judge to do more than follow the previous findings. I find that in failing to analyse the evidence made available with the required degree of anxious scrutiny the Judge has materially erred in law. 50. The only issue that led to the previous Tribunal finding there was a real risk to Mr Harverye on return is set out above. 51. Roadblocks are a way of life in Zimbabwe and numerous complaints have been made by those in the tourist industry in 2015 – 2016 of corrupt police officers setting up frequent barriers and stopping traveller solely to secure a bribe. As stated this was not found to be sufficient to breach Article 3 previously. It has not been made out that Mr Harverye will be unable to leave the airport on return or that he will be destitute. It has not been shown that the level of political violence or intimidation remains as it was previously at this time or that he will be required to demonstrate loyalty to Zanu-PF on arrival. It has not been made out that he will be without funds on return which should enable him to meet the costs of travel to Bulawayo from Harare. It has not been made out that only speaking English will prevent Mr Harverye from being able to negotiate his way around, as English is spoken throughout Zimbabwe. It has not been made out that he will not be able to travel to Bulawayo without suffering a breach of his Article 3 rights and once there his situation is as considered in the earlier determination and country information. 52. Accordingly the evidence available to the First-tier Judge did not establish a real risk of serious harm sufficient to show Article 3 would be engaged. The evidence before the First-tier tribunal did not establish very compelling circumstances over and above those described in paragraph 399 and 399A of the Immigration Rules.”

“If the elections period passes and violence abates and the position is as per CM…”

“43. It is argued by Ms Mairthat the influence of the Chipangano is increasing and that they are becoming more violent (emphasis added) although news reports from Zimbabwe from 2015 speak of the internal purges within ZanuPF substantially weakening the group and the weakening of its influence in the area of Harare where it operates.”