Ndlovu v Secretary of State for the Home Department

J U D G M E N T

1. LORD JUSTICE CHADWICK: I will ask Lord Justice Laws to give the first judgment.

2. LORD JUSTICE LAWS: This is an appeal, with leave granted by Keene LJ on 21 May 2004, against the determination of the Immigration Appeal Tribunal promulgated on 16 September 2003 by which it allowed the Secretary of State's appeal against the earlier decision of the adjudicator promulgated on 9 June 2003. The adjudicator had allowed the appellant's appeal on asylum and human rights grounds against the decision of the Secretary of State set out in a decision letter of 30 October 2000 to refuse his asylum claim. By that letter the Secretary of State held also that there was no claim to stay in the United Kingdom on human rights grounds.

3. The appellant is a national of Zimbabwe. She arrived in the United Kingdom on 23 February 2002 and claimed asylum. Her claim was based on a fear of persecution by the ruling party ZANU-PF. It is most succinctly described in paragraph 2 of the Secretary of State's decision letter as follows:

"You claimed that you left Zimbabwe because of the problems you and your family allegedly experienced with the War Veterans, who are members of the ZANU-PF and Shona tribe, because they wanted to reclaim your land, and with the CIO (Central Intelligence Organisation) on account of your Liberty Party membership. You alleged that on 7 June 2000 the War Veterans came to your family's farm, killed your brother, and beat your mother. You claimed that they threatened her that they would kill her if she did not leave. You contend that they were persecuted because they are Ndebele and also because they were active members of the Liberty Party. You further claimed that the War Veterans returned to the farm on 12 August with the assistance of the CIO whilst you were visiting, and that the CIO threatened your mother that they would kill you if she did not leave. You alleged that the CIO would also want to kill you because you are an active Liberty Party member. You claimed that you left the farm and took your mother to Harare, where you stayed in hiding for three weeks before coming to the United Kingdom."

4. The Secretary of State doubted the appellant's credibility and refused the claim. The adjudicator allowed her appeal. He accepted that she would be at risk anywhere in Zimbabwe; alternatively it would be extremely harsh to expect her to relocate in any particular place given that she would only be able to obtain food and survive if she joined the Zanu-PF party and obtained a membership document. As I shall show, her mother had moved to a place in Zimbabwe close to the South African border called Beitbridge.

5. The IAT allowed the Secretary of State's appeal. They referred to various points on the factual merits (see in particular paragraphs 13 and 14). Then they said:

"15. Then we come to the remaining features of the situation in Beitbridge. Here the adjudicator clearly misunderstood the background evidence as to food sales, which was a cardinal point in his decision that internal flight there would be unduly harsh. Zimbabwe is one of the best-known countries with which the Tribunal has to deal. English is the official language, and there are many contacts with this country. If there were any published or other independent evidence that ordinary tradesmen had been selling food only to party cardholders, we should have expected to see it, especially in the context of a case clearly so professionally and conscientiously prepared on behalf of the claim as this one was.

16. This was a crucial point, in our view, on which the adjudicator went wrong. His decision went out on 9 June. The legal basis of our jurisdiction was not canvassed before us. We are inclined to take the view that the requirement in the present legislation for an error of law is a threshold one, which only falls for consideration on the application for permission to appeal. Whether we are right or wrong about that, we are satisfied that this adjudicator's misunderstanding of the background evidence can be characterised as a clear error, and if necessary one of law. It was entirely understandable, in the absence of a presenting officer, which once again is a regrettable feature of this case, but the adjudicator was clearly wrong. It follows that the Home Office Appeal is allowed."

6. It is important to make clear that the IAT was only entitled to overturn the adjudicator's decision on a point of law. That is the effect of the Nationality Immigration and Asylum Act 2002, section 101. That provision applies to appeals from adjudicators' determinations promulgated on or after 9 June 2003. The adjudicator's determination in this case was promulgated on that very date. I need not read the statute; all this is common ground. It follows that the IAT were quite wrong to hold in paragraph 16 that "the requirement in the legislation for an error of law was a threshold one, which only falls for consideration on the application for permission to appeal". That is a misconstruction of section 101. That section allows for an appeal on law only. This court held as much only two days ago on 20 July 2004 in a case by name R(On the application of CA) v Secretary of State for the Home Department .

7. The question in this case is whether the IAT correctly held that the adjudicator perpetrated an error of law. The material passage in the adjudicator's decision, referred to by the IAT at paragraphs 15 and 16, is to be found in paragraph 18 of the adjudicator's determination as follows:

"The Appellant's mother and her cousin have re-located internally within Zimbabwe to Beitbridge, which is close to the border between Zimbabwe and South Africa. The Respondent in the Reasons for Refusal letter contends that the Appellant could have safely relocated internally within Zimbabwe rather than seeking protection as a refugee from the international community. The Appellant in her evidence to me dealt with this issue as did the Appellant's representative in his submissions. Having considered the CIPU Report I reach the conclusion that the situation throughout Zimbabwe is dire, that the ZANU-PF both dominates and controls the whole of Zimbabwe, and as such there is nowhere in Zimbabwe to where the Appellant could relocate in safety. In particular, I canvassed with the appellant as to why she could not relocate to Beitbridge where her mother and cousin have re-located. Pertinently, the Appellant in her evidence told me that the only way that her mother and cousin could buy food in Beitbridge was to join the ZANU-PF, as merchants had been instructed only to sell food to card-carrying members of the ZANU-PF. The Appellant's evidence in this regard is consistent with the background material which documents this government-sanctioned policy of food distribution. In such circumstances, even if it were safe for the Appellant to re-locate to Beitbridge, I find that it would be unduly harsh to expect her to do so. In reaching that conclusion, I have applied the test as approved by the Court of Appeal in the case of Robinson [1997] Imm AR 568, and find that in the circumstances of the Appellant's case it would be unduly harsh to expect her to relocate internally, even if a place of safety did exist in Zimbabwe, which in itself I doubt."

8. What precisely was the legal error sought to be identified by the tribunal? As I have shown, the IAT asserted that the adjudicator clearly misunderstood the background evidence a to food sales. It seems to me that must depend, in part at least, upon what is said by the IAT at paragraph 7 recording a concession made by the appellant's advocate. The paragraph reads as follows:

"There are known difficulties with aid supplies in Zimbabwe being distributed under Government auspices only, and presumably to those who either were or pretended to be government supporters. This case does not involve supplies of that kind. Mr Rodwell very frankly concedes that there is no background evidence to which he can refer us about difficulties in buying food from ordinary shops without a party card. There are of course shortages and queues, as we saw in the second part of that passage, but that is another matter."

9. It does not seem to me that there is any inconsistency between the substance of that concession and the adjudicator's findings in paragraph 18 of his determination. First, the adjudicator was distinctly accepting and relying on the appellant's own evidence. That, of course, falls to be distinguished from the background or in-country evidence. As regard the background evidence, the adjudicator does not find that there was positive evidence as to merchants being instructed only to sell food to card carrying members of the governing party. The background evidence certainly included material which demonstrated that the ruling party used food distribution as a tool against their potential political adversaries. The position in relation to the absence of food in Zimbabwe was dire, especially for citizens known to oppose the ZANU party. The adjudicator is merely arriving at an evaluation based, first, on what the appellant herself said and, secondly, the background material. None of it is contradicted by the concession made by Mr Rodwell or, as I read the case, anything else that is to be found in the background material.

10. There is a narrower point taken in relation to this. It is that there is some slippage between the words in which the adjudicator recites the appellant's evidence, "merchants have been instructed only to sell food to card carrying members", and the terms in which it is put in the appellant's statement, which was to the effect that there was no food in the shops. That is so fine a difference as not to amount to anything of substance. In so far as the tribunal held that the adjudicator misunderstood the background evidence and that amounted to an error of law, in my judgment the tribunal was mistaken.

11. Another point in relation to this part of the case was taken by Miss Anderson for the Secretary of State. She submitted that the adjudicator did not approach the question of internal flight in the manner commended by this court in Januzi [2003] EWCA Civ 1188, that is by comparing conditions in the appellant's putative safehaven with conditions in the place of his habitual residence. The complaint is that instead of doing that, the adjudicator simply excoriated conditions that existed in the country as a whole. As far as I can see, this was not a point ever taken before the IAT, and I am not content that Miss Anderson should be allowed to take it now. In truth, it does not really arise. If the position were one in which the appellant would be unsafe generally if returned to Zimbabwe but safe from government interference in Beitbridge, on the particular facts I greatly doubt whether the reasoning in Januzi ought to disqualify consideration being paid to the food shortage arising in Beitbridge even if it is common in other places in the country. I do not regard the point as truly arising.

12. In those circumstances, it seems to me that the tribunal were in error in allowing the appeal against the adjudicator's decision for the reasons they gave. There is however another dimension in the case which has been canvassed in argument before us. Even if there were such an error as the tribunal found, the adjudicator's prior conclusion that this appellant would be at risk of persecution anywhere in the country if she were returned to Zimbabwe, would render such an error academic. We have therefore given some consideration, with the assistance of counsel, as to whether this prior conclusion arrived at by the adjudicator itself could be categorised as flawed by some legal mistake. For this purpose it is necessary to read paragraphs 14 to 17 of the adjudicator's decision:

"14. Article 1 of the 1951 Convention defines a refugee as someone who, owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group, or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country. The Appellant claims that she has suffered persecution in the past in Zimbabwe as a result of her Ndebele ethnicity, as a result of her membership of the Liberty Party and as a consequence of her family being land owners. I find that all three of those reasons, and indeed any one of them, constitutes a 'Convention reason' for claiming refugee status within the meaning of Article 1 of the 1951 Convention provided that the fear is well-founded, and it is to that question that I now turn.

15. The Appellant at the hearing before me produced the original of the letter, a copy of which appears at page 6 of the Appellant's bundle, certifying her membership. Having considered those documents, I am satisfied that it is reasonably likely that the Appellant, at all material times to this Appeal, was a member of the Liberty Party. I further accept that the Appellant is of Ndebele ethnicity and the Appellant's evidence that the principal aim of the Liberal Party is to promote the welfare and interest of the Ndebele is consistent with the background material, and accordingly I accept the Appellant's evidence in that regard. I further accept as being reasonably likely to be true that the Appellant's father was murdered by the 5th Brigade in 1983, and that her brother was murdered in June 2000 by ZANU-PF war veterans, all of which is consistent with the background material documented in the CIPU Report. Finally, I accept as being reasonably likely to be true the Appellant's evidence that war veterans demanded the deeds to her mother's farm on the basis that it had formed part of a larger farm owned by white settlers, and the Appellant's evidence that the war veterans threatened to kill the Appellant if her mother did not hand over the deeds to the farm, is also consistent with the background material and accordingly I accept the Appellant's evidence thereof as being reasonably likely to be true.

16. Having accepted the credibility of the Appellant's claim in its core elements, I have no difficulty in finding that the severity of the harm threatened against the Appellant and her family crossed the threshold of severity into persecution. I accept the credibility of the Appellant's claim that her brother was murdered by the ZANU-PF war veterans when they came to the family farm in June 2000, and I further accept the credibility of the Appellant's claim that on 12 August 2000 six war veterans visited the family farm and threatened that they would kill the Appellant if her mother did not hand over the deeds to the family farm. The background material indicates quite clearly that ZANU-PF and the war veterans are well capable of murder and severe violence which clearly crosses the threshold of severity and amounts to persecution. The CIPU Report also leads me to conclude that ZANU-PF and the war veterans in perpetrating and threatening such severe violence are acting with the full knowledge and support of President Mugabe and as such they constitute agents of the State, and that their actions are in effect State-sponsored persecution.

17. I further find that it was as a direct consequence of the incident which occurred on 12 August 2001 when the war veterans threatened to kill the Appellant if the deeds to the family farm were not handed over to them, which led to the Appellant fleeing Zimbabwe on 27 September 2000. The CIPU Report indicates that the situation in Zimbabwe certainly has not improved since the Appellant fled Zimbabwe in September 2000, and indeed if anything the situation as deteriorated. My consideration of the CIPU Report leads me to the clear conclusion that the State of Zimbabwe is unwilling to provide a sufficiency of protection to its population, and indeed it is unwilling even to feed those members of its population who are not prepared to join the ZANU-PF. In such circumstances I have no difficulty in finding that there is a reasonable likelihood that the Appellant would face persecution from the State of Zimbabwe if she is returned thereto as a consequence of her political opinion, her ethnicity, and her immediate family being the owners of a farm, the ownership of which the war veterans and ZANU-PF seek to dispossess the Appellant's family."

13. In the end the point was a very short one. Miss Anderson submitted that the adjudicator's finding of persecution really rested on an unspoken proposition to this following effect. Although the appellant's mother has now left the family farm, the bare fact that she retains the deeds suffices to give rise to the risk that the authorities will come after the appellant. It may be that the adjudicator's reasoning does rest on such a proposition. Miss Anderson says it has not been confronted by the adjudicator in terms and there is really no evidence to support it. I do not agree. If one takes the whole of the paragraphs I have just cited in their entirety, it is plain that the adjudicator is arriving at an evaluation of the facts to which many elements contribute; principally, perhaps, the history of this woman and her family, two murders, the possession of land and all the other matters set out in those paragraphs. They include her membership of the Ndebele Tribe, her membership of the Liberty Party and so forth. It seems to me that reading the matter as a whole and bearing in mind that the adjudicator was obliged and entitled to form his own evaluation on all the facts and all the evidence, he was entitled to conclude as he did at the end of paragraph 17:

".... there is a reasonable likelihood that the Appellant would face persecution from the State of Zimbabwe if she is returned thereto as a consequence of her political opinion, her ethnicity, and her immediate family being the owners of a farm, the ownership of which the war veterans and ZANU-PF seek to dispossess the Appellant's family."

14. If I had found that the adjudicator's conclusions as to this first question of persecution were legally erroneous or arguably so, given that the tribunal were wrong to find a legal error in adjudicator's decision which they did, I would still have allowed the appeal. But in that case I would have wanted to consider, no doubt with counsel's assistance, whether the right order to make would be to remit the matter back to another adjudicator. But there is no legal error, in my judgment, in the finding as to persecution. That being so, the adjudicator's determination was not one which could successfully be challenged under section 101 of the 2002 Act and the Tribunal should not have allowed the Secretary of State's appeal. In those circumstances, I would allow the appeal in this court.

15. I would add this. It is plain that the adjudicator placed heavy reliance on this appellant's particular evidence. It is important to have in mind that this decision of the adjudicator does not, and cannot, create any kind of precedent in any sense. If there were, as no doubt there may well be, other appeals yet to come which have to address the sorry state of persons in and fleeing from Zimbabwe, they will be considered on their factual merits on the evidence brought before the adjudicator in those cases and by reference to nothing else.

16. For the reasons I have given, I would allow this appeal.

17. LORD SLYNN: It is plain that in this case there has to be shown an error of law on the part of the adjudicator before the Immigration Appeal Tribunal can substitute its own view on the result of the case.

18. Miss Anderson has, with skill and considerable force, argued that there are a number of such errors on the part of the adjudicator, therefore the tribunal's decision should stand. As my Lord has said, the heart of the case is the question whether the finding of the adjudicator as to food availability and distribution reveals an error of law. In the first place, counsel has pointed to what she says are inconsistencies between the written evidence and the oral evidence of the witness. It is clear in her written evidence that she says that the shops did not have any food. She also adds that they could only buy food from centres which were a member of the government party. In her oral evidence, as the adjudicator found, she is recorded as saying that you could only have food if you were a card carrying member of the ZANU-PF party. That is why her mother and sister had to join the party.

19. I do not see that there is any inconsistency there. The adjudicator was recording what he understood her evidence to be against the background of the written statement.

20. Secondly, it is said that the adjudicator misunderstood the background evidence. Again I do not see that as being made out. It is quite plain that, even if there is, as Mr Rodwell conceded, a precise statement in the background material that food could not be brought from ordinary shops without a card, there is ample material in the background papers to show that there was a food shortage, and to indicate that the Government was using food as a political weapon in order to control people and to win adherence to its own party. It seems to me that the adjudicator was fully aware of the difficulty of food distribution, but he says, in terms, that the appellant's evidence in this regard is consistent with the background material which documents the Government's sanction of food distribution. I see no error of law in that.

21. It is also said that the concession as to the background material indicates a serious error of law. It is easy to read too much into what is said in paragraph 7 of the Tribunal's decision. Mr Rodwell was saying, as I have indicated, that there is nothing precise setting out in terms this particular point. The inference from the rest of the evidence is, however, very clear. It is equally plain that if shop keepers were being told only to supply to party members, and only party members, could get the food, this is a matter which had come from a Government instruction.

22. I wholly agree with what Lord Justice Laws has said about the central point of the case. I also agree that the other errors of law which have been suggested have not been made out.

23. Accordingly, I would allow the appeal and reinstate the determination of the adjudicator.

24. lLORD JUSTICE CHADWICK: I agree with both judgments.

Order: Appeal allowed. The adjudicator's decision to be restored. Respondent to pay appellant's costs to be subject to detailed assessment. Public funding order of the appellant's costs.