SC (Zimbabwe) v Secretary of State for the Home Department

SC appeals against a decision of the Asylum and Immigration Tribunal (‘AIT’) dismissing on re-consideration her appeal against the decision of the SSHD refusing her asylum and human rights claims. On 30 April 2007 Sedley LJ after an oral hearing granted the appellant permission to appeal in respect of the grounds specific to her individual case and adjourned the grounds relating to the general country situation pending the decision of the AIT in the country guidance case of HS (Zimbabwe) v The Home Secretary (AA/02471/2006). The decision was published on 26 November 2007 after we had heard the appeal.

The appellant is a citizen of Zimbabwe born in 1967. She arrived in the United Kingdom and was granted leave to enter for six months as a visitor and subsequently granted leave to remain as a student until May/June 2002. She did not leave the country on the expiry of her leave to remain but remained illegally at large for about 2 years before claiming asylum on 9 December 2004. In 2002 the appellant met a Zimbabwean man by whom she had a daughter P born on 20 September 2004. The appellant is suffering from HIV Aids. Without treatment she has a life expectancy of about six months. With treatment her life expectancy is said to be unlimited. Her daughter P has also been diagnosed as HIV but she is not currently on treatment, although she will at some stage require treatment.

She was interviewed in January 2005 and her application for asylum and her application under the HRA 1998 were refused in February 2005. She appealed. Mr Blackford IJ allowed her appeal. The respondent applied for re-consideration. Mr Mather SIJ and Dr Okitikpi decided that Mr Blackford had made a material error of law. That conclusion is challenged in ground 1 of this appeal. In view of what was said by Mr Mather to be a failure on the part of Mr Blackford to explain what parts of the appellant’s evidence he had and had not accepted, the AIT decided that there should be a full re-consideration with the appeal being at large. The appeal was then heard by Mr D J Boyd QC, IJ, who on 30 October 2006 rejected the appellant’s appeal against the decision of the Secretary of State. It is submitted by Mr Henderson in his other grounds that Mr Boyd made material errors of law.

The appellant, who gave evidence both to Mr Blackford and to Mr Boyd, was in large measure disbelieved by both.

I start with ground 1.

Mr Blackford accepted the appellant’s evidence that she was a teacher by profession and had taught in Zimbabwe before leaving the country.

In paragraph 52 he concluded:

“... the main thrust of the claim ... is that the appellant could not return to Zimbabwe in safety. It seems to me that the real support for this appeal relates not so much in the appellant’s individual history as to the mere fact that she is a teacher. In this connection the appellant relies upon the passages from the background material which are set out or summarised in paragraphs 44, 47 and 48 above. I do not have a copy of the relevant sections of the passport and I accept that it may very well show that she is a teacher. The background material indicates clearly that teachers are readily identified as members of the MDC and are frequently mistreated as such.”

It seems very clear to me that Mr Blackford was concerned with what might happen to the appellant at Harare Airport on the appellant’s return thereto and the consequent discovery by those in authority that she had been a teacher in Zimbabwe

In paragraph 54 he concluded:

“In accordance with my findings of fact given above I conclude that the appellant has a fear of persecution, that it is well founded and that it is for the convention reason of imputed political opinion, spurious as that implication may be.”

Mr Blackford used the words ‘spurious as that implication may be’ because of his previous finding that the appellant was not a member of the MDC.

I turn to the decision of Mr Mather and Dr Okitikpi. Mr Mather said this in paragraphs 5 and 6.

“5.

Mr Karanche submitted that the appellant, although not an actual member of MDC, was perceived as such. We did not consider that was relevant to the consideration of this appeal. The words in paragraph 52, following the immigration Judge’s decision that the appellant’s ability to relocate was academic, make it abundantly clear that this appeal was not allowed because the appellant may or may not have been perceived as an MDC supporter. It was allowed because he said it is unsafe to return any teacher to Zimbabwe. If that were a correct assessment of the background evidence it would mean that no teacher, whether a ZANU-PF supporter or otherwise, and anyone who had a teaching qualification, whether actually working or not, could be safely returned. ...

6.

... Whilst we accept that the treatment of practising teachers, as set out in paragraph 44, may have been discriminatory, and arguably persecutory, for those who were not ZANU-PF supporters, it does not support the suggestion that all teachers are at risk in Zimbabwe. The finding was an error of law and the reconsideration must proceed to a second stage reconsideration.”

In my view it is “abundantly clear that this appeal was ... allowed because the appellant may ... have been perceived as an MDC supporter”. Paragraph 54 makes it clear that the fear of persecution was well-founded only because the appellant might be perceived as being identified with the MDC.

Nor did Mr Blackford hold that any teacher even a ZANU-PF supporter could not safely be returned.

In my view the finding that Mr Blackford made the identified error of law is flawed and the appeal must be allowed unless Mr Kovats can persuade us that, notwithstanding this, ground 1 must fail.

Mr Kovats accepted that it could not be ruled out on the evidence in this case that teachers would be seen as MDC supporters. In the words of Mr Blackford:

“The background material indicates clearly that teachers are readily identified as members of the MDC and are frequently mistreated as such”

Mr Kovats submits that Mr Blackford did not explain why a person identified as a teacher and therefore, in Mr Blackford’s view, as a person who would be identified with the MDC would be at real risk of persecution at Harare Airport. He submits, secondly, that the country guidance case of SM [2005] UK IAT 100 does not support the proposition that identified low level MDC support carries with it the real risk of persecution at Harare Airport. Neither of these, however, were errors of law (if errors they be) identified by Mr Mather and in my view on the complex facts of this case it would be quite wrong for this Court to try and second guess what Mr Mather might have decided. Mr Kovats submitted that Mr Blackford ought to have distinguished between a working teacher and a person who has been a teacher returning to Zimbabwe. In my view Mr Blackford was not obliged to draw such a distinction given his finding. There was a real risk, so Mr Blackford found, that a person who had taught in Zimbabwe and who was not a ZANU-PF supporter would be perceived at Harare Airport as an MDC supporter with the possible consequences identified by Mr Blackford.

Mr Kovats also referred to the adverse credibility findings and the failure on the part of Mr Blackford to make clear findings of fact. Neither of those assists the respondent here.

In my view ground 1 of the appeal succeeds and it is not therefore necessary to consider the other grounds.

I agree. This is not a case in which the appellant would be at risk of persecution or Article 3 ill-treatment when working as a teacher on return to Zimbabwe. It is implicit in the findings of Mr Blackford that she would not be in a fit state to teach. She would live with her mother in Mutara. Mr Blackford plainly treated this as an airport case. Paragraph 52 of his determination (the material part of which has been set out by Lord Justice Hooper in paragraph 7, above) focuses on the appellant’s putative return to Zimbabwe and adverts specifically to the fact that she would probably be identified as a teacher from her passport. Once the authorities at the airport in Harare identified her as a teacher, it would be obvious or readily ascertainable that she was not a ZANU-PF supporting teacher. The country material available to the Immigration Judge entitled her to draw the inference that there was at least a reasonable likelihood that she would be perceived to be a MDC-supporter and, as such, at relevant risk. I am satisfied that Mr Blackford reached a permissible conclusion which was not vitiated by legal error and, accordingly, I too would allow this appeal.

It is appropriate to keep in mind what Lord Justice Carnwath said in Mukarkar v Secretary of State for the Home Department [2006] EWCA Civ 1045 (at para 41):

“One of the main purposes of the 2005 reforms was to streamline the appeal process, and reduce the scope for onward appeals. If this legislative policy is to be successful, it must work both ways, and those advising the Secretary of State may be expected to give a lead. That requires restraint by them, as well as by judges considering applications for the grant of leave. If this means living with some decisions which go against the grain of current government policy, that is a price which may have to be accepted in the interests of the wider objective.”

I agree that the appeal should be allowed for the reasons given in both judgments.