Mlauzi v Secretary of State for the Home Department

LORD JUSTICE LATHAM: The appellant is a citizen of Zimbabwe who was born on 9th May 1963. She came to this country and sought asylum in December 2002. She sought asylum on the basis that she feared that she would suffer persecution if she were returned to Zimbabwe because of her imputed political opinion, namely her membership of the Movement for Democratic Change. Further, or alternatively, she submitted that her removal from the United Kingdom would contravene her human rights under the European Convention on Human Rights, relying on Article 3 of that Convention.

The respondent refused her leave to remain in the United Kingdom, either as a person who was entitled to the protection of the Refugee Convention, or a person who was entitled to the protection of the European Convention on Human Rights, on 24th June 2003. She appealed against that decision to an Adjudicator, who on 8th October 2003 allowed her appeal. The respondent then appealed to the Immigration Appeal Tribunal, which allowed the respondent's appeal in a determination of 22nd July 2004, and it is against that decision that the appellant appeals to us today.

In her evidence to the Adjudicator she stated that she had been a supporter, but not an active member, of the Movement for Democratic Change since its inception. At the relevant time, when the problems which resulted in her leaving Zimbabwe arose, she was, together with a partner, in the business of growing mushrooms. She employed in that business two men who for a three-week period simply did not turn up to work. They then came back to her and demanded wages for the weeks that they had not worked. There was an argument. The men accused the appellant of being a puppet for white people and of standing in the way of land distribution. It became apparent that they were either members of, connected with, or had friends in Zanu-PF and were also friendly with a group of local Zanu-PF supporters who were connected in turn with a number of war veterans.

The appellant was, as a result, seriously concerned that she may become the target of reprisals by the Zanu-PF supporters or the war veterans. Her fears on that account were fully justified because shortly after she had had the argument with her two employees, seven men who were clearly Zanu-PF supporters came to her house, jumping over the locked gates into the compound. She was at the time there with her son and her maid. Her husband was not present. She managed to hide; and, during the time that she was hiding, the maid was questioned. She overheard their questioning, which was clearly aggressive. Whilst they were there her husband arrived home. He was beaten and was interrogated as to her business. They appeared to believe that her business activities were a cover for political protest. They said that they would return to deal with the appellant and they then left.

As a result of that, she fled the house and went to stay with a friend in Bulawayo. She did not feel safe at her friend's house. She believed that as a new visitor she would attract suspicion and that local Zanu-PF supporters would pass on the information that she was there. Accordingly, she went to live with her mother in a rural area, also not far from Bulawayo, where she stayed for a week. However, the situation there caused her serious concern. There was talk of people being beaten and of newcomers to the area being suspected of political activities.

Her mother was afraid to let her stay with her; and she then went back to her friend's house. She decided to apply for a visitor's visa to the United Kingdom. Her intention at that time was simply to come to this country whilst the situation in Zimbabwe resolved itself. She optimistically hoped that the regime might in fact change whilst she was here. Unfortunately it did not. She remained, she said, in close contact with her husband. He informed her that Zanu-PF continued to target him and that at a meeting her name had been mentioned as someone whom the Zanu-PF remained interested in.

She has been told, she said, by her husband and by her maid that the Zanu-PF supporters still believed that her mushroom business was some sort of cover for a conspiracy directed against the government, and it was in those circumstances that she decided not to return to Zimbabwe but to apply for asylum as she did in this country.

The Adjudicator found that account credible. He described it as both internally consistent and plausible in the light of the objective evidence. He considered that in the circumstances he could accept her fear that Zanu-PF members did indeed believe that she was a person who held political views which were contrary to that of the government and, in the circumstances, that she was entitled to conclude that she was likely to be a target of their activities, which would involve violence to her and maybe even danger to her life.

The respondent's case before the Adjudicator had been that she could in fact, albeit in fear in or around Bulawayo, have lived safely elsewhere in Zimbabwe; in other words, that she could have found somewhere to live where she would not have been at risk of the sort of persecution which she feared. The Adjudicator's conclusion as to that in paragraph 11 of his determination was to this effect:

“As far as an internal flight option is concerned I accept the Appellant's contention that there is nowhere safe in Zimbabwe from Zanu-PF who are the national ruling party after all. I accept that sooner or later the Appellant would be likely to be identified. The fact that the Appellant may have been safe whilst in hiding at the houses of her friend and her mother does not mean to say that she would be able to live a normal life in another part of Zimbabwe if she were no longer in hiding.”

It was on that basis that he concluded that she had established that she would be at a real risk of persecution and of having her Article 3 rights contravened were she to be returned to Zimbabwe.

The respondent, as I have already indicated, applied for permission to appeal to the Immigration Appeal Tribunal. The respondent was given permission on the grounds that the internal relocation issue raised an arguable point for the Tribunal to consider. The Tribunal in a short determination, set out its reasoning in paragraph 6 of the decision:

“We have reached the conclusion that we have no option but to allow this appeal. We accept Mr Saville's [the respondent's advocate] submission that she did in fact relocate without any difficulty albeit going to stay with a friend or her mother. We agree that there was no evidence that she was in hiding and it seems to be the case that she was leading a normal life. We take particular notice of the fact that there is no evidence to indicate that this appellant was politically active before she left her home. It follows that we have no evidence to support the contention that she is likely to become particularly active elsewhere in Zimbabwe. We accept that some MDC members might find themselves in difficulty with the authorities but this can only arise if there is some triggering event. In the respondent's case she made certain derogatory remarks [about] the President and that for her was the triggering incident. We have no reason to believe that that is likely to happen again.”

The appellant has appealed to this court on the basis that the Tribunal was simply not entitled to interfere with the conclusion of the Adjudicator as to what essentially was a decision on the facts.

Mr Tam, who has appeared before us today on behalf of the respondent, accepts on behalf of the respondent that indeed the Tribunal did not have any jurisdiction to disturb the Adjudicator's conclusion on the basis of a disagreement as to fact. He has made that concession as a result of the decision of this court in the case of CA [2004] EWCA Civ 1165, a decision which was given by this court on 20th July 2004, which was some two days before the Tribunal's decision in this case. In his judgment, Laws LJ dealt with the position as to the jurisdiction of the Immigration Appeal Tribunal, which is relevant to this case, which is set out in the Nationality, Immigration and Asylum Act 2002, section 101(1), which provides as follows:

“A party to an appeal to an adjudicator under section 82 or 83 may, with the permission of the Immigration Appeal Tribunal, appeal to the Tribunal against the adjudicator's determination on a point of law.”

Mr Tam accepts on behalf of the respondent that on its face the Tribunal does not appear to have directed itself that it was only entitled to interfere with the Adjudicator's decision if it could discern a point of law on which the Adjudicator had erred. In those circumstances he accepts that the appeal should be allowed.

He submits, however, that we should remit this case either to the Tribunal freshly constituted, or to an Adjudicator for the matter to be redetermined on the basis that although the appeal to the Tribunal was not dealt with by the Tribunal on the proper basis, it was nonetheless an appeal which could properly be said to have raised an issue of law. He has identified that issue as being inadequate reasoning on the part of the Adjudicator. He has concentrated on the conclusion that the Adjudicator reached that the appellant had been in hiding in her mother's house and in her friend's house, and that that was a conclusion which was not supported by any material before the Adjudicator.

Further, he submits, the Adjudicator failed to deal properly with the case on the basis that the only material before him showed that, insofar as the appellant could properly say that she was in fear, she could only say that that was the case in Bulawayo or in its environs, and that there was no material to support the conclusion that she would be in fear elsewhere in Zimbabwe. Insofar as there may have been any material which would have entitled him to have come to that conclusion, he nowhere gives proper reasons for concluding that that argument is one that must fail.

The position on the evidence, Mr Tam has had to accept, does indeed show that the appellant had put before the Adjudicator evidence that after she left her home she could properly be described as having been in hiding. We have not had any transcript of the oral evidence that was before the Adjudicator, either her evidence in chief or cross-examination, but the written material includes passages in her interview record which set out the background to the events which resulted in her leaving home and which in my judgment make it abundantly plain that she indeed had, when leaving home, intended to go into hiding. When she was asked about the time when she had hidden in the dog kennel and had emerged when the men left to find her husband beaten, she said this:

“I came out from hiding and my husband suggested that I live [sic] and find another hiding place because they intended to kill me.”

In a later answer she said:

“I left my home the very day my husband was attacked, he came to collect me the following day and we went to the police to report the incident.”

She then described how she went to her friend's house where she stayed for three weeks. She described how the men continued to come to her house looking for her constantly, knowing about, as she put it, “our lives quite well”. She said that she wanted to go as far way as possible, to allow the situation to simmer down, to a place that she had friends.

It was in those circumstances that she went eventually to her mother. She described in a later statement this part of her story in the following terms:

“I stayed with my friend at [address stated] for three weeks. On the night of the incident I called [S]. [That was her business partner.] I was scared that our former employees would know where she was living, and might target her. I said that I had gone into hiding. My husband also called [S] during this time. She told him that she was going to leave Zimbabwe. This was the last contact I had with [S].

“I did not feel safe in my friend's house. Zimbabwe is not like other countries where people mind their own business. A new visitor to an area attracts suspicion, and local ZANU supporters would pass on information. The ZANU neighbourhood committee would soon find out who you are, where you come from, why you have come, and how long you will stay for. People are scared to let visitors stay with them.

“I went to stay with my mother in Ngungumbane, in a rural area outside Bulawayo. I stayed with my mother for about a week, but the situation was even worse where she was. People were being beaten, and in particular newcomers to the area were beaten and abducted. In a rural area, being a visitor is even more dangerous -- every visitor is recognised, and the people of different political affiliations live close together in the same village. My mother was scared to let me stay with her.

“I returned to my friend's house in Bulawayo, but because of the problems I have mentioned, I could not stay there.”

Then at the end of that statement she said this:

“The Secretary of State has claimed that I was able to live safely at my friend's house. This is not true. For the reasons explained above, it was not safe for me to remain at my friend's. I left to avoid my friends or myself becoming a target.

“The Secretary of State claims that I could live elsewhere in Zimbabwe. Nobody in Zimbabwe would let me stay with them, because it would put them in danger. Wherever you go, as newcomer, you are subject to suspicion. They will even track you down if you move across the country.”

It is therefore plain that there was abundant material upon which the Adjudicator could conclude, as he did in the passage to which I have already referred in his decision, that in the period after the Zanu-PF attack on her house she had been, as he described, “in hiding”. It is apparent also, from paragraph 7 of his determination, that the one basis upon which the respondent had put his case on this matter before the Adjudicator was as follows:

“He [the respondent] further asserts that as the Appellant was able to live safely at a friend's house she should have remained there and therefore an internal flight option would be open to the Appellant on return in any event.”

It seems to me that the Adjudicator was entitled, on the material that he accepted, to conclude that that argument was one which could not be maintained on the facts, and the material to which I have referred makes it plain that the Adjudicator's reasons were fully adequate to deal with that particular argument.

Mr Tam has submitted that the Adjudicator should have dealt with the fact that the only danger that the appellant had described was local to Bulawayo and that there were other areas of the country to which she should and could have gone and lived safely. He was unable to point to any of the material which was before the Adjudicator to support the contention that a person in her position would have been safe elsewhere in Zimbabwe.

Had there been an argument based upon the proposition that the only conclusion that one could sensibly arrive at was that it was possible for her to live elsewhere in Zimbabwe because of the in country condition reports, then, if the Adjudicator was to come to a different conclusion, clearly he would have had to give some reasons for so concluding. But that was not the case which this appellant had to meet. This appellant was entitled in the circumstances to the finding of the Adjudicator in the terms that the Adjudicator gave as being a fully adequate answer to the respondent's argument in this case.

This seems to me to be an appeal which essentially was determined on its own facts, and relates to a factual decision which the Adjudicator was entitled to reach. There has been no legal issue raised, that I can see, at any stage. This accordingly was, under the new regime of the 2002 Act, not a case which could properly found an appeal from the Adjudicator's decision. That is restricted, quite plainly now, to those cases where the appellant, be it the Secretary of State or the would-be asylum seeker or immigrant, can identify a point of law before the Tribunal will have any jurisdiction to interfere with an Adjudicator's decision on the facts. This case does not raise one, and in those circumstances I would allow this appeal and restore the Adjudicator's decision.

LORD JUSTICE NEUBERGER: I agree.

LORD JUSTICE BROOKE: I agree and I am only adding a short judgment of my own in order to comment on two different matters which arise on this appeal.

The first relates to the filing of documents at the court by the Treasury Solicitor and/or by counsel instructed by the Treasury Solicitor. I have now drawn attention to the requirements of the new Practice Direction to Part 52 in two separate judgments, one at the end of June and the other in the middle of September: see Scribes West v Relsa Anstalt (No 1) EWCA Civ 835 and Jeyapragash v Secretary of State of the Home Department [2004] EWCA Civ 1260; 92005] 1 All ER 412. I am sorry I have to revert to this topic on a third occasion.

This time all the Practice Direction required the Treasury Solicitor as the respondent to the appeal to do was to decide, in consultation with her clients, whether to file a respondent's notice. If a decision was taken not to file a respondent's notice, then all that the respondent was required to do was to inform the Civil Appeals Office and the appellant in writing, not later than 21 days after the date she was served with notification that permission to appeal had been granted, whether she proposed to file a respondent's notice or whether she proposed to rely on the reasons given by the IAT for its decision.

The decision was taken not to file a respondent's notice, and writing a letter to the court to that effect would not have taken very much time and was obligatory under paragraph 15.6. Unhappily, the Civil Appeals Office, which is short of resources, had to chase the Treasury Solicitor for an indication of her intention on this appeal. It was not until 7th January 2005 that a letter was sent confirming that it was not her client's intention to file a respondent's notice in the matter. That then left the way open for a respondent's skeleton argument to be filed on or before 31st January.

On 11th January the Civil Appeals Office sent out a standard form letter to the Treasury Solicitor noting that the respondent's skeleton argument had not yet been filed, drawing express attention to the requirement that all documents which were needed for the appeal hearing MUST be filed at least seven days before the hearing, and in that way drawing the Treasury Solicitor's attention to her professional duty under the Practice Direction.

So far as that matter is concerned, the court had no idea what the respondents were going to do or not do until last Friday, 4th February, four days late, when a skeleton argument was served in the middle of the day.

So much for the skeleton argument, for whose late arrival counsel has accepted responsibility. The bundle of authorities was required by 31st January. The claimant's solicitors, who no doubt are doing their best on Legal Services Commission funding -- I do not know the position about that -- had to write more than once to the Treasury Solicitor, requiring her co-operation in accordance with the mandatory requirements of paragraph 15.11(1) and (3) of the Practice Direction. Both parties were reminded by the Civil Appeals Office of their professional duty on 11th January. The claimant's solicitors wrote to the Treasury Solicitor on the subject on 18th January. They wrote to the Treasury Solicitor again on 20th January. It appears from a letter of 26th January that they left a voicemail message that day, further to their earlier written requests concerning the list of authorities. In the letter they said:

“As you have stated yourselves the deadline for complying with the lodging of the agreed bundle of authorities is 31st January 2005. Therefore as will be obvious we require your list of authorities before this date, preferably today upon receipt of this fax, as we assume you are aware by now of which authorities you will be relying on.

“We have already put the Civil Appeals Office on notice that the only delay regarding the lodging of the agreed bundle is due to awaiting a response from yourselves. We are of course updating them as regards your communication/non-communication regarding this issue.”

Finally, on 31st January, when the guillotine fell -- and I use the word guillotine advisedly -- the claimant's solicitors wrote again to the Treasury Solicitor:

“We write further to our correspondences to yourself regarding the submission of your list of authorities.

“We have today telephoned the Civil Appeals Office and updated them as regards your lack of communication.

“The Civil Appeals Office has advised us to contact you today and should you have not provided us with your list by the end of the day we shall be lodging our bundle of authorities tomorrow morning with a covering letter explaining the state of affairs.

“We look forward to hearing from you as a matter of urgency.”

The bundle of authorities was indeed lodged by the claimant's solicitors on a unilateral basis. It was not until Friday 4th February that additional authorities were lodged by the Crown.

Mr Tam has explained to us, as counsel instructed by the Crown, that he was also instructed before another division of this court in the case of B v Home Secretary [2005] EWCA Civ 61 and although he knew from the draft judgment sent to him what the court was going to say, it was not until 1st February that the court formally handed down the judgment in B. In those circumstances he wished to delay accepting a skeleton argument, or advising on what authorities might be needed, until after the judgment in B came out in the open.

That is an understandable viewpoint, provided the court and the other side are told what is happening or not happening. The Practice Direction was deliberately drafted in such a way that late documents could in a real emergency be received. But CPR 1.3 obliges the parties to help the court to further the overriding objective of the new Civil Procedure Rules. The claimant's solicitors are short of resources; the court is short of resources; and it is a matter of great regret that the Treasury Solicitor apparently, on the material before us, failed to respond on a number of occasions, both to the Civil Appeals Office and to the claimant's solicitors, when all that her responsible officer was being asked to do was to comply with her mandatory duty, stressed by the word “must” in the Practice Direction and emphasised by the word “MUST” in the documents received from the court.

I should add that between 7th and 18th January the matter was to some extent put on hold because the Treasury Solicitor on instructions suggested to the claimant's solicitors that the appeal might be allowed on the basis that the case be remitted to the Immigration Appeal Tribunal. The claimant's solicitors in due course -- quite rightly as Latham LJ's judgment has shown -- rejected that suggestion, so that from 18th January, 13 days away from the guillotine day, the Treasury Solicitor knew, and her clients knew, that they had a live appeal on their hands. I repeat what I have said in my previous two judgments that the day seven days before an appeal is heard is the day by which, except in the most exceptional cases, all documents for the Court of Appeal must be filed. Even in those exceptional cases the Court Office should be told clearly why there has been default.

This leads me on to the second general matter. It is now well known that Parliament revoked the power of the Immigration Appeal Tribunal to hear appeals on fact in relation to any decision by an Adjudicator which was made after the first week of June 2003. For a long time the effect of this decision appears not to have percolated through to those who practise before the IAT, and the IAT itself made a number of determinations in which it did not clearly identify the point of law which alone gave it jurisdiction to hear the appeal.

The consequence of this is that there is now quite a considerable backlog of appeals awaiting a hearing in the Court of Appeal which this court has got to handle one by one. It is now a matter of concern to the court that, insofar as these were cases where the IAT, on the appeal of the Secretary of State, overturned the decision of the Adjudicator and there is a justifiable concern that it did not identify a point of law when it made that decision, the Crown should look anxiously at all these pending appeals in the light of the judgment of Latham LJ, to determine whether it really is able to resist the appeal successfully, or at best obtain a remission, either to an Adjudicator or to the Tribunal.

This court is likely to be slow to direct a remission in these cases unless, as in the case of B, decided last week, it can see that matters went wrong before the Adjudicator. If it is simply an issue of fact which the Adjudicator had to determine on the facts, including the factual background evidence before him/her, appeals from a reversal by the IAT are going to be less easy to resist, particularly if, as happened in this case, counsel instructed by the Crown at a later stage of the proceedings was not clearly instructed what factual material had been put before the Adjudicator.

I mention this in the knowledge that the present regime in the IAT is going to come to an end in two months' time. But the problem to which I have drawn attention, which arises from the supremacy of the decision of the Adjudicator on fact, is going to carry through with even more force into the new statutory regime which will come into effect in early April of this year. It is therefore incumbent on all those who practise in this jurisdiction to understand that supremacy is now given, and will be given, to the original judge's decision on fact, so that it will be important to identify clearly what facts were placed before him/her, and what argument was adduced to him/her if there is to be an appeal on law. Appeals on fact are matters now very firmly in the past.