CM (Zimbabwe) v the Secretary of State for the Home Department (Rev 1)

This is an appeal with permission granted by myself and Beatson LJ on 10 May 2013 against a decision of the Upper Tribunal of 31 March 2013 in which the tribunal reconsidered and, subject to one amendment, confirmed the country guidance relating to Zimbabwe given in EM & Others (Returnees) (Zimbabwe) CG [2011] UKUT 98. The decision in that case was promulgated in March 2011 and replaced earlier country guidance given in RN (Returnees) (Zimbabwe) CG [2008] UKAIT 00083.

The new guidance was set out in 11 subparagraphs at paragraph 267 of the determination in EM. It was very crisply and briefly summarised by Beatson LJ, granting permission to appeal in the present case, at paragraph 3 of his judgment as follows:

“The fresh guidance in EM and others was that, in general, the return of an unsuccessful applicant for refugee status from the UK with no significant MDC profile did not face a real risk of having to demonstrate loyalty to Zanu-PF. There was, however, a difference between urban areas and rural areas. In all but two rural areas there was such a risk. As to Harare, returnees would in general face no significant difficulties if going to a low or medium density area. In a high density area, although the position was more difficult, absent a significant MDC profile or participation in political activities likely to attract adverse attention by Zanu-PF, returnees in general would not face significant problems.”

CM, the appellant, was one of the appellants in EM. He and one of the other appellants, JG, sought permission to appeal to this court against the EM country guidance decision. There followed a somewhat tortuous procedural course. As the Upper Tribunal observed at paragraph 7 of the determination now under appeal, the Court of Appeal was concerned as to what might be the impact of certain material relating to the assessment of risk in Zimbabwe, which apparently had been available in January 2011 but had not been disclosed to the tribunal or the appellants. This material had come to light in another case. Permission to appeal to this court against the EM country guidance decision was at length granted. This court directed further disclosure by the appropriate government department of data in government hands dating from 1 January 2010 to 10 March 2011, but the court was informed that the response would be the service of public interest immunity certificates on behalf of the Foreign Secretary.

In the event, in June 2012 the appeal was allowed by consent. The Secretary of State accepted that certainly some of the disclosures more recently provided should have been given in the course of the EM case before the tribunal. The appellants' cases were remitted to the Upper Tribunal for redetermination in the light of a number of issues of law set out in the schedule to this court's order. The appellant, JG, disappeared from the scene because she obtained leave to remain in the United Kingdom.

Given the three specific grounds on which permission to appeal was granted on 10 May 2013, it is not necessary to set out the whole contents of the schedule to this court's earlier order, though we should note: (a) the principal issue was whether the earlier decision in EM was "fraud by reason of non-disclosure"; (b) consideration was to be given to the Secretary of State's outstanding claim to withhold material on public interest immunity grounds; and (c) there was a question as what weight should be accorded to anonymous evidence in light of the Strasbourg decision in Sufi and Elmi v United Kingdom [2011] ECHR 1045, which postdated the promulgation of the EM country guidance determination.

There were two directions hearings in the Upper Tribunal after remittal by this court. They took place on 10 July and 14 September 2012. The substantive hearing took place between 2 and 5 October 2012. It will make for clarity if I explain at once the three grounds on which the appellant has leave to appeal against the Upper Tribunal's subsequent decision. They reflect the issues I have summarised, which the Upper Tribunal had to consider on the case being remitted to them. There were, in fact, eight grounds of appeal advanced. We granted permission on the first three, articulated by Beatson LJ in his judgment of 10 May 2013 at paragraph 12 as follows:

“First, it is submitted that the Tribunal erred in not finding that the Secretary of State was under a general duty to provide disclosure in an asylum and Article 3 appeal. Secondly, in the light of the decision of the Strasbourg Court in Sufi and Elmi v United Kingdom [2011] ECHR 1045, it was submitted that the Tribunal erred in relying on wholly anonymous evidence in the report of the fact-finding commission. Thirdly, it was contended that the Tribunal erred in appointing a public interest immunity advocate instead of a specially appointed advocate in respect of the disclosure ordered by the Court of Appeal.”

It is convenient to address Ground 3 first, the appointment of a PII advocate. In written directions given on 23 July 2012 the Upper Tribunal indicated that it was minded to appoint a "specially appointed advocate" to enable them to complete the task of determining the outstanding issues relating to disclosure and PII. At length, after initial observations by the Attorney General to which I may say Mr Henderson took some objection today, submissions were received from the parties and on 3 August 2012 the Upper Tribunal resolved to appoint a PII counsel rather than a specially appointed advocate. Consideration had been given to the practice note at AHK v SSHD [2009] EWCA Civ 287. In a letter to the solicitors involved of 3 August 2012 the tribunal said this:

In its final determination now under appeal, the Upper Tribunal said this:

We should add that we understand from Mr Tam QC, who has represented the Secretary of State before us today, that Ms Olley returned to the tribunal after those discussions with counsel for the Secretary of State referred to in paragraph 31. Indeed, Mr Tam was that counsel.

The appellant makes it clear (paragraph 92 of Mr Henderson's skeleton) that it is not his case that he would be entitled to a specially appointed advocate in any PII process. This court's expression of concern at paragraph 38(ii) of AHK as to the appropriateness of a court proceeding "to test and probe the material with the benefit of counsel for only one side" is well understood, though as we understand it it arose there in the context of a closed procedure. The PII advocate appointed by the Attorney General at the request of the tribunal acted in effect as a friend of the court or perhaps a judicial assistant or, as Underhill LJ suggested in the course of argument, counsel to an enquiry. The Upper Tribunal could of course have made its own assessment without the assistance of any advocate. Its decision to seek a PII advocate where there was as I understand it a very great deal of material to consider and a tight timetable to keep was in my judgment within its proper case management functions. Mr Henderson accepted that the Upper Tribunal was entitled in principle to seek and obtain assistance. Indeed so much is supported as I see it by the decision of the Supreme Court in Al-Rawi v the Security Service [2012] 1 AC 531, though the reference there is to a special advocate.

The real burden of Mr Henderson's submissions today has been that there was something in the nature of a delegation to the PII advocate. He relies in particular on paragraph 28, which suggests that the tribunal did not peruse every piece of information or every document itself. For my part I reject this argument. It is of course always important that the court or tribunal should satisfy itself that a proper result is arrived at in any PII issue. That that requirement was satisfied in this case is to my mind supported by the very terms on which the Upper Tribunal sought the appointment of a PII counsel on 3 August 2012, in particular at paragraphs 4 to 6 which I have read. It is to some extent also supported by the last words of paragraph 29 in the Upper Tribunal decision:

I do not accept that this conclusion is contradicted by the accelerated process which it is clear (see paragraphs 28 and 30 of the Upper Tribunal determination) was adopted. Where recourse is had to such a procedure it must go without saying that the Upper Tribunal should be astute to execute its own responsibility of decision and to explain, perhaps more clearly than it has done here, that it has fulfilled that responsibility. In my judgment however that responsibility was properly carried out here and I would reject the submissions made to the contrary under this ground of appeal.

I turn to Ground 2, the use of anonymous evidence. The original genesis of this issue is to be found in two passages in the EM country guidance determination. First, at paragraph 145:

Sufi and Elmi was concerned with country conditions in Somalia. The Strasbourg court was engaged in assessing the risk of Article 3, ill-treatment to persons liable to be returned to Mogadishu. A material part of the information before the court was derived in Kenya from anonymous organisations apparently operating in Somalia. It was submitted that little or no weight should be given to this material. The court's assessment included these following paragraphs, which with others are set out by the Upper Tribunal in the determination under appeal.

“230.

In assessing the weight to be attributed to country material, consideration must be given to its source, in particular its independence, reliability and objectivity. In respect of reports, the authority and reputation of the author, the seriousness of the investigations by means of which they were compiled, the consistency of their conclusions and their corroboration by other sources are all relevant considerations (Saadi v. Italy [GC] no. 37201/06, §143, 2008.., BAILII: [2008] ECHR 179 and NA v the United Kingdom, cited above § 120).

...

234.

That being said, where a report is wholly reliant on information provided by sources, the authority and reputation of those sources and the extent of their presence in the relevant area will be relevant factors for the Court in assessing the weight to be attributed to their evidence. The Court recognises that where there are legitimate security concerns, sources may wish to remain anonymous. However, in the absence of any information about the nature of the sources’ operations in the relevant area, it will be virtually impossible for the Court to assess their reliability. Consequently, the approach taken by the Court will depend on the consistency of the sources’ conclusions with the remainder of the available information. Where the sources’ conclusions are consistent with other country, their evidence may be of corroborative weight. However, the Court will generally exercise caution when considering reports from anonymous sources which are inconsistent with the remained of the information before it.

235.

In the present case the Court observes that the description of the sources relied on by the fact-finding mission is vague. As indicated by the applicants, the majority of sources have simply been described either as ‘an international NGO’, ‘a diplomatic source’, or ‘a security advisor’. Such descriptions give no indication of the authority or reputation of the sources or of the extent of their presence in southern and central Somalia. This is of particular concern in the present case, where it is accepted that the presence of international NGOs and diplomatic missions in southern and central Somalia is limited. It is therefore impossible for the Court to carry out any assessment of the sources’ reliability and, as a consequence, where their information is unsupported or contradictory, the Court is unable to attach substantial weight to it.”

Before the Upper Tribunal at the remitted hearing in October 2012 the Strasbourg Court's reasoning in Sufi and Elmi was deployed to assault the tribunal's observations at paragraphs 145 and 198 of EM. The Upper Tribunal said this at paragraphs 153 and 154 of the determination under appeal:

“153.

Further, it should be noted that this was part of the assessment of the general background to person security in Zimbabwe and did not form a specific part of the guidance issued. The issue in question was not a free standing assessment of the current state of police discipline and independence but whether the incidence of politically motivated violence had reduced in the urban centres, for which there was near unanimity of view between informants.

154.

The Tribunal was not, therefore, giving decisive or undue weight to a single unsupported source. Moreover the interview process elicited details of the extent to which the two organisations referred to were able to operate in Zimbabwe. Organisation 9 was able to operate freely throughout Zimbabwe and the environment had improved over the last 18 months but mostly within a year of the political agreement. Where there were directives from local officials to stop working in limited cases, the problem could be overcome through negotiation. There were a few districts where access was not granted but these were small geographical areas. Organisation 10 said it was able to ‘operate freely in respect of some aspects of its operations but in relation to work with IDPs (internally displaced persons) there are some constraints on physical aspects to some areas. They are often overcome through local explanation and negotiations but concerns remain and the situation is expected to get worse as the next elections approach’. There is thus nothing inconsistent between the use the Tribunal made of the two organisations in question and guidance in NA v United Kingdom repeated in Sufi and Elmi v United Kingdom.”

Then at paragraphs 156 to 161:

“156.

For the reasons given by the European Court of Human Rights in NA and the passages repeated in Sufi and Elmi, in asylum determination, there are sound reasons why sources who may have valuable information to give to diplomatic missions, international organisations like UNHCR or non-governmental organisations like Amnesty International would wish to do so under conditions of anonymity. In some cases an order prohibiting the publication of the sources may suffice to give re-assurance in others it may not. Where they do not, potential sources of concern may not always be confined to government agents and their supporters. Providing information to an appellant or his legal team on a confidential basis may thus provide the source with satisfactory protection.

157.

Anonymous material is not infrequently relied on by appellants as indicative of deteriorating conditions or general risk. The Tribunal should be free to accept such material but will do its best to evaluate by reference to what if anything is known about the source, the circumstances in which information was given and the overall context of the issues it relates to and the rest of the evidence available.

158.

The problem is not one of admissibility of such material as forming part of the background data from which risk assessments are made, but the weight to be attached to such data. It is common sense and common justice that the less that is known about a source and its means of acquiring information, the more hesitant should a Tribunal judge be to afford anonymous unsupported assessment substantial weight, particularly where it conflicts with assessment from sources known to reliable. In our judgment it is neither possible nor desirable to be more prescriptive than this, and the task of evaluation of weight is a matter for the judgment of an expert Tribunal that is regularly asked to take into account un-sourced data whether submitted by claimants or respondents. Provided a judge is alert to the problems caused by anonymous evidence and the principles we have summarised above, we do not consider that an issue of law arises.

159.

The report of the FFM under consideration in EM was not a model of best practice in a number of respects, many of which were exposed at the hearing. We were, however, satisfied that informants with whom contact was made were selected in good faith by the mission with the assistance of locally based diplomats. We were also satisfied that ultimately the interlocutors (whether they wished to be quoted in an individual or representative capacity) were content with the final version of the summaries of their information and knew the context in which it was being gathered (cf [106] to [107] in EM).

160.

By contrast with the position pertaining in Sufi and Elmi, each of the four anonymous organisations had a presence in Zimbabwe and brief descriptions had been supplied of their status and ability to gather information. The informants in the report were not predominantly anonymous. The known sources were all reputable and independent and had the capacity to supply relevant data within the area or field of their operation. We had no reason to suspect that unknown sources were different in kind to known, and in respect of organisation 16 this seems to have been accepted by W66. To reject anything said by informants from the unknown group on the basis that it was possible that they alone were not independent, objective, or had the capacity to acquire the information they were passing on, would be very close to questioning the good faith of the respondent in submitting this data for our assessment.

161.

In summary, we are satisfied that the use we made of Organisations 9 and 10 on the passages under challenge was not unlawful, unfair, an irrational exercise of judgment or in breach of the general principles set out in NA v United Kingdom and approved by the AIT and the higher courts in the United Kingdom.”

I regard that reasoning as irreproachable. In Sufi and Elmi the Strasbourg Court did two things. It drew attention to what is with respect an obvious truth, namely that anonymity of information is likely to inhibit the forensic possibility of challenging it. And, secondly, paragraph 235 drew attention to particular difficulties on the facts of that case. I have to say that I deprecate what I see as an attempt to persuade this court to treat the reasoning in Sufi and Elmi as if it established something not far removed from a rule of evidence. I would endorse what the Upper Tribunal said at paragraphs 163 to 165:

There is no general rule at common law or inspired by the European Convention on Human Rights that uncorroborated anonymous material can never be relied on in a country guidance case or any other case. Sometimes that will be the position. Whether or not it is so will depend on all the circumstances. That is the approach taken by the Upper Tribunal in this case. Generally of course the effect of anonymity will go to the weight to be attached to the material in question and care must always be taken in assessing the weight of such material. So far as Mr Henderson contended for a stricter rule, it seems to me that that is a submission that should be rejected.

I have noted that the factual material attributed to Organisation 9 came from persons who were for institutional reasons speaking for themselves. The Upper Tribunal determination (paragraph 152) refers to "informants of Organisation 9". This dimension in the case, though it figured quite large in Mr Henderson's submissions this afternoon, does not seem to me to amount to anything of significance.

The conclusions of the Upper Tribunal, moreover, are not in my judgment undermined by considerations of common law standards of fairness, Article 47 of the Charter of Fundamental Rights or fair trial guarantees under the European Convention. This was not a case of a party being denied any opportunity of knowing the case against him or of having to face the difficulties of a closed material procedure. It seems to me that in this respect also the Upper Tribunal's decision was correct and appropriate.

I turn lastly to Ground 1, the Secretary of State's duty of disclosure. It will be recalled that when the EM country guidance determination was before the Court of Appeal the court directed disclosure of material relating to the period 1 January 2010 to 10 March 2011. At the remitted hearing before the tribunal Mr Henderson submitted that the required disclosure period should cover a more extended period of time. This led to a debate, as I understand it, about the reach or scope of the Secretary of State's duty of disclosure in country guidance cases. The Upper Tribunal correctly indicated in the judgment in the decision presently under appeal (paragraph 36) that the applicable procedure rules do not impose a general requirement for disclosure of all relevant material held by the Home Office or the Foreign Office in asylum appeals. Rule 5 of the Tribunal Procedure (Upper Tribunal) Rules 2008 provides in part:

It is of course obvious that the Secretary of State may be the subject of directions under rule 5(3). The absence of a general duty of disclosure is as I see it confirmed by the decision of the House of Lords in R(Abdi) v SSHD [1996] 1 WLR 298, which was followed or applied by the Immigration Appeal Tribunal in FZ & Ors v SSHD [2003] Imm AR 633 (see paragraphs 22 to 23 and 26).

The Upper Tribunal decision in the present case was founded on the approach taken inR v SSHD ex parte Kerrouche (No 1) [1997] Imm AR 610. At paragraph 38 they cited Lord Woolf's judgment in that case:

This reasoning was applied in R(Cindo) v IAT [2002] EWHC Admin 246. The Upper Tribunal cited that case at paragraph 39, observing:

Then at paragraphs 45 to 46 the Upper Tribunal said this:

“45.

In our judgment, in asylum appeals and Country Guidance cases, the duty not to mislead provides a sound basis for evaluation of country material. Where the respondent relies on absence of material risk by reference to Country of Origin Information Service (COIS) reports, UKBA Operational Guidance Notes (OGN), or responses to the evidence of others, she cannot make assertions that she knows or ought to know are qualified by other material under her control or in the possession of another government department.

46.

We anticipate that UKBA assessments of risk in foreign countries will frequently be informed by information emanating from the UK diplomatic mission in the region or other data in the possession of the Foreign and Commonwealth Office. In the case of Zimbabwe we know that this has been substantially the case for some time. The UKBA relied substantially on the expertise of the British High Commission in preparing the fact-finding mission and the evaluation of political circumstances. We would expect the UKBA to ask for and be informed about any reliable material that might qualify a published assessment. We would expect COIS reports to be updated regularly and kept under review. Where new material comes to light an OGN can be issued promptly, even if it is not itself a source of independent evidence. We observe that it was on the basis of an OGN as to enhanced risk of non-Arab Darfuris in Khartoum that the AIT was able to promptly vary previous Country Guidance in AA (Non-Arab Darfuris- relocation) (Sudan) CG [2009] UKAIT 0056.”

In my judgment this approach based on the Kerrouche line of reasoning is correct. In addition, the Upper Tribunal has of course the important procedural powers given by rule 5. Somewhat different considerations perhaps apply in SIAC where a closed material procedure is deployed and special processes for the production of exculpatory material have been developed (NB: RB (Algeria) v Home Secretary [2009] UKHL 10, [2010] 2 AC 10 and MT v SSHD [2008] QB 533). But Kerrouche, as modified by the later cases, shows in my judgment that in the country guidance context the Secretary of State must disclose material tending to qualify the view otherwise being put forward as to what is the appropriate country guidance. So there is no significant point to be made as to any contrast with the closed material issues arising in SIAC. I will return to the nature of the duty following the Kerrouche principle shortly.

Mr Henderson referred to the Treasury Solicitor’s guidance for judicial review cases. The submission is that that should be followed in country guidance cases. That guidance is of course tailored for judicial review proceedings, and such proceedings are manifestly concerned with the legality of a distinct executive decision of which plainly the public decision maker in question is obliged to give a full and proper account to the court. Here we are concerned with something which to my mind is much closer to an inquisitorial process. The question is what disclosure is appropriate given the subject matter or the nature of the subject matter of a country guidance case. An important part of the background here, as it seems to me, is the Secretary of State's admitted earlier failure to make proper disclosure. I should read paragraphs 49 to 52 of the Upper Tribunal's determination:

“49 Before the Court of Appeal the respondent accepted that previous disclosure was incomplete and that there was a failure of the duty of disclosure in the light of the issue identified above that had caused the Upper Tribunal to exercise its case management powers.

50.

This again was a historic rather than current issue. It went to an issue as to why the respondent had decided to resume removals to Zimbabwe. In the absence of a general duty to place before the Tribunal all contemporary data relating to an assessment on Zimbabwe, we saw no reason to exercise our case management powers to achieve the same result.

51.

There was further a risk of a never ending cycle of disclosure requests, PII applications and so on. Disclosure by the Secretary of State of material held by the Foreign Office did involve PII issues, and the process for manual search, evaluation, submission for a certificate, judicial scrutiny of the merits of the certificate and the assessment whether there was a compelling case for disclosure in the interests of fairness was a laborious and time-consuming process. The volume of material in issue far exceeded the slender bundle we were able to assess for ourselves in December 2010. The whole process was bound to be measured in months rather than weeks or days. By the time one application was determined the passage of time might lead to a further application and so on. We consider that the issue of directions requiring either the respondent or a fortiori a third party, to provide material in an asylum appeal is an unusual and exceptional course. If it were regularly and routinely undertaken, it would be likely to significantly delay the listing and determination of any appeal.

52.

We recognised that, if there was recent material that was known or ought to be known to the Home Secretary suggesting that, whatever the position in the past, it would now be unsafe to return the appellant to Zimbabwe, her legal representatives had accepted that a duty of disclosure would arise, in the event that it was decided still to oppose the appeal. The discharge of such a duty did not depend on directions from this Tribunal.”

The practical considerations there discussed by the Upper Tribunal suggest the question which perhaps suggests itself: how should the court or tribunal assess "what the Secretary of State ought to have known" for the purpose of the Kerrouche duty? This is the true place of due diligence in this field. The Secretary of State's duty in my judgment is to take reasonable steps to ensure that material relevant to a country guidance case is placed before the tribunal, and she must be candid in relation to documents of which she is aware whether or not they assist her. She may have to enquire of persons or bodies such as other government departments with which in any event the Home Office will be in communication, but she is not required to undertake unprompted or undirected searches.

I understood Mr Henderson to submit this morning that the Secretary of State is generally required in a country guidance case to make a search or, as he put it in reply, some search for material not in the public domain. Though he said that sometimes not much of a search might be required, it seems to me that this is close to a contention for something more than a general duty of disclosure: a general duty to seek out otherwise unknown material. If required generally that would amount to an unprompted or undirected search. The Secretary of State's duty is, rather, as I have stated it. It will require the Secretary of State to make specific enquiry inside or outside her own department where the need for that is prompted by material in her hands. But there will be cases in which the developments in a particular country are well documented and in the public domain. The exercise is always case-sensitive, and that seems to me to be an important dimension in this part of the argument. I doubt if this court can reasonably or properly be more prescriptive. The Kerrouche approach adopted by the Upper Tribunal is as I have said correct.

The proper working in practice is, I think, illustrated by the catalogue of material supplied by the Secretary of State to the Upper Tribunal for the October 2012 hearing, set out in Mr Tam's skeleton at paragraph 3.44. Mr Henderson has directed some criticisms to that presentation this morning, but the exercise described was in my view apt to assist the tribunal in making the necessary country guidance assessment.

In the result then, I would reject all three of the grounds of appeal. I add that the Upper Tribunal in the present case made only one alteration to the EM guidance. That appears at the end of the fifth paragraph. In the light of my conclusions on the issues which we have considered, if my Lords agree there is nothing in this appeal to require those revised guidelines to be revisited.

For all the reasons I have given, I would dismiss the appeal.

I agree.

I agree.