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

Giving permission to appeal simply because the Ward antennae twitch is not a reason usually found in the Civil Procedure Rules, but whether it is or whether it is not I am going to give permission in this case because there are aspects of it that deeply trouble me.

This young woman, 30 years old, came from Zimbabwe via South Africa. She arrived in the country, was seen by the immigration authorities and seems to have made some statement to them. On leaving the airport to meet with the agent who was paid to look after her, she was, she says, left abandoned in North London until eventually she made enquiries back home in Zimbabwe and in the end was sent to the pastor with whom she now lodges, Mr Patrick Sillah. Unfortunately there was delay in her making her application for asylum, and those facts together with the fact she had a false passport have invoked section 8 and the consequences for her of being regarded as suspect.

Counsel advised in this case but I gather that legal aid has been withdrawn for some reason or another. Counsel advanced essentially two main points in seeking to appeal. The first is whether Immigration Judge Kelly was correct in relying on her pre-claim statement. The second was whether the judge correctly applied the case of RN (Returnees) Zimbabwe CG [2008] UKAIT 00083. I can dispose of the latter case quite easily. I do not have the case of RN (Returnees); I do not have the faintest clue what it says, and I have no idea therefore whether this ground is made out. Unfortunately the applicant appearing in person is in the same state of ignorance as I am. As for the former issue, letting in the pre-claim statement, there are obvious difficulties in succeeding in that, as Hooper LJ identified when he refused permission on paper.

But the first thing that has caused me to be troubled is to compare the way the Immigration Judge dealt with the weight to be attached to various interviews, and he recognised that, as he said in paragraph 35 of his judgment:

“The possibility that such trauma may affect the reliability of the explanation for its cause is no doubt fundamental to the respondent’s policy of not requiring a claimant to give details of his or her asylum claim at the screening interview stage.”

He seems, as I have read -- and I hope not misread -- paragraphs 34 and 35, to have been drawing some distinction between the screening interviews and more formal interviews, but not applying the same criteria to them; and I thought that was disconcerting. I felt uneasy that some lack of credibility was given to this young woman’s statement simply because she called the unknown men who beat up her sister and raped her, as she alleges, gangsters; as if “gangsters” is suggestive of criminal hooligans as opposed to those who roam in Zimbabwe, who are political hooligans. So it worries me that semantic differences of that kind should be found in the judgment at all.

But what really troubles me, and the real reason why I give permission, is this: this woman’s credibility was utterly destroyed in the eyes of all who have encountered her. One reason given was her inconsistency as to the date of the death of her sister; was it on the day of or after the attack, or was it three weeks later? There are inconsistent statements, which she explains by her confusion and her general anxiety, what she calls “flashbacks”. And if what happened happened as she described it, that her sister was beaten to death, she was attacked and raped, flashbacks may not be inappropriate. Some corroboration of her account was tendered in the form of a death certificate, and the death certificate has been accepted in paragraph 41 as entirely genuine. I have not seen it. I am told it records that her sister died on the day she said, the day of or after the incident and of the internal bleeding with is consistent with her beaten up. And if the document is true on the face of it, it ought not to have been peremptorily dismissed, as it seems to have been, simply because the author of the information is the appellant’s brother and that there were delays in registering the death. We are dealing with Zimbabwe, not Somerset House. So I am deeply troubled that a document which was capable of corroborating was not given proper weight, and in the result her credibility was dented; whereas if the document was accepted on its face value as genuine, it did support her claim to a material extent.

Those are the matters which trouble me enough to give permission, even though I have not had the benefit of counsel’s argument and even though I have not seen the death certificate itself. I am going to give permission to appeal. I am going to direct that a copy of this judgment be prepared at public expense. I invite the Legal Services Commission to consider very carefully in the light of this judgment whether legal aid can be restored to this woman. And if counsel feel, if reinstructed, that there is merit in my point about the failure to give proper weight to the death certificate, then there is leave to amend the grounds of appeal accordingly. The appeal should be heard by a court of three, which can include one High Court Judge, and the case will take two hours.