MS (Zimbabwe) v The Secretary of State for the Home Department

This is a slightly curious case, for reasons I will come to. The background is familiar enough and arises from the very difficult circumstances in Zimbabwe. The claimant is a citizen of Zimbabwe. She comes from a place in the countryside in Zimbabwe, where she lived before coming here. Her mother and her seven siblings are still living there.

She came to the UK in September 2002 and was given leave to enter on the basis she had come to visit a cousin. She then applied to remain as a domestic worker, which was refused. However, she remained here unlawfully. In May 2008 she claimed asylum on the basis of the risk of persecution in Zimbabwe, where she said she was known as an MDC supporter.

Her case was dismissed by the Secretary of State her appeal in front of Immigration Judge Frankish failed, but that resulted in a reconsideration before Immigration Judge McDade. He gave his decision on 19 January 2009. He dismissed the appeal. In paragraph 8 he referred to the guidance case of RN (Zimbabwe) and he said:

The decision then goes on to consider in more detail the evidence, and concludes at paragraph 9:

That was followed by an application by an appeal to the Court of Appeal with permission granted by Stanley Burnton LJ, and led in due course to an order by consent remitting the matter to the tribunal. The order provided :

The statement of reasons which had been submitted in support of the application for a consent order explained the background:

The matter came back before the AIT, presided over by Senior Immigration Judge Jordan and Immigration Judge Parks. They referred to the background of the claim, noting the case that she had been a supporter of MDC. They referred to the reconsideration before Immigration Judge McDade and the appeal to the Court of Appeal. They commented on the slightly unusual position where, in effect, they had been asked to “reconsider a reconsideration”. As they said, in normal circumstances the order of the Court of Appeal sweeps away the unlawful reconsideration, allowing a clear field to permit a lawful reconsideration to take place, thereby retaining intact the principle that there can be no more than one reconsideration on an appeal. They continued in paragraph 10:

They then summarised the finding of Immigration Judge McDade, noting his finding that:

The appellant was represented at that hearing by Mrs White. At paragraph 21 the tribunal record that they invited her to adduce any additional evidence upon which she wished to rely in support of the claim, the appellant herself being present, and they noted:

The tribunal then set out at some length -- arguably excessive -- the conclusions of the tribunal in RN (Zimbabwe) and came back to their own consideration of the matter at paragraph 26. They noted that although the appellant was found not to be credible in relation to the core of her account, it was necessary to consider whether, notwithstanding her failure to give a true account of her experience, there was a reasonable likelihood of persecution on return. They said:

They went on to observe that she had made no freestanding claim to be at risk, freestanding in the sense that it arose independently of her account of past events. Her claim to be at risk was welded inextricably into her claims to have been at risk as a result of her own and her family's MDC activities in Zimbabwe. The collapse of that account “permits no credible alternative claim arising by default”.

Then I need only refer to paragraph 40, where they draw the threads together:

Taken on its own that reasoning, as I think is accepted, would not be open to successful challenge. Indeed, observers of this area of the law would find in some of the wording an echo of the wording used in other cases to which this particular immigration judge was party, including one of those considered and upheld by this court in TM (Zimbabwe) [2010] EWCA Civ 916.

However, Mr McKenzie, who has appeared before us for the appellant, takes a specific point based on the Court of Appeal's order. He says that it was no business of the tribunal to be going into these broader matters, when the matter had been sent back to them on a very specific basis -- that is, on the basis of the facts as found by HHJ McDade. One of those facts was that the appellant had little or no interest in politics and that she had no political profile. In those circumstances, he says, it was not for them to speculate as to whether or not she was a supporter of Zanu If she had no political profile, then by implication that excluded her being a supporter of Zanu.

He says, furthermore, that if one relates that finding to the reasoning of this court in the more recent case of RT (Zimbabwe) [2010] EWCA Civ 1285, it is apparent that lack of political opinions can give rise to persecution where the circumstances are such that there is a risk of being persecuted for "imputed political opinion" (see paragraph 36 of our judgment). He says this case is similar to one of the cases there considered, RT itself, where it was found that the claimant had never been politically involved at home or abroad and that the tribunal had been wrong to treat this as insufficient in itself to show that she would have been at risk, without going on to consider whether she would be able to prove loyalty to the regime or be forced to lie in order to do so. That particular appeal was allowed on the basis that, since it had been found that she had no political profile and since she was going back to an area where there was a risk of her being stopped, there was a clear risk that she would be forced to lie if she was to make out a case of loyalty to Zanu-PF.

Mr Mackenzie supports his argument by referring to the correspondence which proceeded the consent order. There was in fact a draft prepared by the Treasury Solicitor which simply remitted the matter for reconsideration. The draft statement of reasons recorded that the respondent acknowledged that it was necessary for a lawful decision for the matter to be remitted for factual findings to be made. There was correspondence about that, in which those representing the appellant said that there was no need for more findings of fact. In a letter of 18 August 2009 they said:

There was in fact a skeleton argument prepared by Mr Mackenzie for the purpose of that appeal which made the same point. At paragraph 12 it is said that the finding that she had no political profile:

The correspondence ended with an exchange where the appellant's solicitors said :

That led to the amendment of the statement of reasons and of the proposed draft order, in accordance with the proposals of the appellant's solicitor, to add the words "on the basis of the factual findings made by Immigration Judge McDade".

So Mr Mackenzie says not only is the order clear on its face, but that the basis on which this point had been put forward by them was made clear in the correspondence and the Treasury Solicitor agreed to it.

The difficulties I see with that simple proposition, attractive though it is, are twofold. In the first place I do not think one can simply take those two sentences out of the decision of Immigration Judge McDade and treat them as findings of fact free from the context in which they were made. The statement that "she had little or no interest in politics" were made in the context that she had put forward a case of being a supporter of the MDC, which was rejected. When the immigration judge said that she had no interest in politics, as I read it, he was simply rejecting that case, as indeed when he said that she has no political profile. I agree that one can argue about that particular interpretation and, if that issue had been raised before the tribunal, no doubt the tribunal would have dealt with it. That leads to the second and more fundamental difficulty, in my view, which is that before the tribunal the point taken by Mr Mackenzie in his skeleton argument to the Court of Appeal does not seem to have been taken in those stark terms by Mrs White. On the contrary, Mrs White clearly sought to add to the findings of Immigration Judge McDade, not only by introducing more recent evidence about the elections in Gutu East, but also by seeking to interpret the decision in relation to matters on which no specific finding had been made. That was what the AIT said she could not do, simply because the findings were not there. She was also given the opportunity to call additional evidence. There is no suggestion there that she rejected that opportunity on the basis that the order of the Court of Appeal simply did permit it, but rather that it was not something that she intended to do.

It is to be noted also that the tribunal had before them simply the order of the Court of Appeal and the statement of reasons in support. They had to interpret that as best they could with such assistance as Mrs White and the presenting officer were able to give. There is no suggestion that they had before them the pre-order correspondence or the skeleton of Mr Mackenzie as it was at that time.

In those circumstances it seems to me that they were entitled to read Immigration Judge McDade's decision in the way I have read it, to see it as dealing with the suggestion that she was a member of the MDC, but not excluding the possibility of her having allegiance to Zanu-PF, at least so far as necessary to support the decision that she had failed to establish that she would be unable to prove her loyalty to Zanu-PF.

Accordingly, in my view the particular point on which this appeal must stand or fall fails, and I would dismiss this appeal.

I agree. I have a reservation as to whether or not it is proper to interpret a court order, even a consent order, by reference to correspondence and the like which the court itself has never seen. But, whether that is so or not, I take the view that the findings of Immigration Judge McDade do not include, when read properly, a positive finding that this lady was a complete neutral in politics. What he was doing in paragraph 5, and effectively repeating again at paragraph 9, was saying no more than “I do not believe her”. Once you have got to that point it is difficult to see how what he was saying could possibly then go on to include “but I do believe that she had no interest in politics”. This was, in the context, saying “I do not believe her; in effect, I have no idea what her position is”. True, he expressed it slightly differently, but that is the only rational way to read what he said.

I agree with both judgments.