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

LORD JUSTICE BEAN: This is an application for permission to appeal from a decision of the Upper Tribunal refusing permission to bring judicial review proceedings. It is coupled with an application for a stay on the Appellant's removal from the UK to Zimbabwe, which is due to take place this Friday evening, 31 July.

The Appellant is a national of Zimbabwe who arrived in the UK on 18 September 2005 with entry clearance and was given leave to enter as a student for a period of three years. She enrolled on various courses of study in that time.

She had left Zimbabwe where she had been unhappily married. She claims, and I am prepared to assume for present purposes truthfully claims, that she was the victim of domestic violence from her then husband. They were divorced by order of Zimbabwean court in 2007.

In 2012 she applied to the Home Office for leave to remain on compassionate grounds. The application was refused in August 2013, but with a right of in country appeal, which she did not exercise. It is said that she lacked funds. Perhaps she did lack funds to instruct a lawyer, but it is nonetheless surprising in view of what followed that she did not appeal.

At any rate, on 29 October 2013, that is some eight years after coming to this country, she applied for asylum. She was interviewed in the usual way, but by letter of 22 May 2014 the Home Office rejected her application for asylum and also considered whether she was entitled to humanitarian protection and decided that she was not. The Home Office officials who made the decision certified both the asylum and the human rights claims as clearly unfounded: see paragraphs 54 onwards of the decision.

Accordingly, as the letter said, she had no right of appeal in country. What she has done, however, is to seek permission for judicial review of the decision made on behalf of the Secretary of State to refuse asylum and to certify the claim.

As Mr Emezie, who has appeared on her behalf in this court, rightly submitted, the test for certification is whether the claim can properly be described as bound to fail. If it is not bound to fail, then a certificate should not be issued and the ordinary appeal process should be allowed to take its course.

The reasons for refusal given in the letter of 22 May are lengthy. The letter runs to 11 pages and is carefully argued. Essentially, it can be summarised in this way.

The Claimant's alleged fear of her husband is not a fear of persecution based on membership of a particular social group or political opinion. It is not a fear of persecution by agents of the state. The Appellant's ex-husband is not alleged to be a person of any great influence in the Zimbabwean regime.

The Secretary of State's officials also take the view that while the country information in relation to Zimbabwe reports unsurprisingly that to a substantial extent Zimbabwean police are inefficient, underpaid and corrupt, it is nevertheless a large and populous country and internal relocation is possible.

In paragraph 41 the writer states:

The Claimant has no dependants in this country and therefore, unsurprisingly, the decision makers found that such interference with her ECHR Article 8 rights, as would be involved in her being excluded from the UK, would be proportionate.

The application for judicial review was first considered by Upper Tribunal Judge Warr on the papers. He found that the Home Office did not arguably err in law in making the decision which I have set out, in particular as to sufficiency of protection and internal relocation. He held that the Applicant's claims had no realistic prospects of success.

On a renewed oral application, which Mr Emezie appeared and before Judge Kopieczek, permission was again refused. This was partly on the grounds that the renewal application was out of time, but also on substantive grounds as well.

An application to this court was considered on the papers by Underhill LJ on 5 June. He assumed, as I shall do, that this court had jurisdiction to entertain an application for permission to appeal, but he refused such permission and a stay on all grounds.

Mr Emezie says, first, that the Upper Tribunal Judges did not apply the proper test, which is whether the claim is bound to fail. I do not accept this. It is true that Judge Warr did not use the phrase "bound to fail", but his conclusion was that the Applicant's claims had no realistic prospect of success and the Respondent did not arguably misdirect herself in certifying them. That seems to me to be saying the same thing in different language.

I am also going to put aside the criticisms which Mr Emezie makes of Judge Kopieczek's refusal of permission on the basis of the late renewal. As I said to Mr Emezie, in an asylum claim of this kind, if I consider that an appeal has substantive merit, I would put to one side the late renewal.

Mr Emezie next complains substantively that the Appellant is a member of a particularly vulnerable group, namely persecuted women, and should have been accorded an oral hearing on the merits rather than the less satisfactory alternative of judicial review which is brought about by certification of the claim. He has referred me to the Presidential Guidance Note of Blake J, who then was the President of the Upper Tribunal (Immigration and Asylum Chamber), about the treatment of vulnerable witnesses.

This argument, with respect, is logically flawed. It cannot be said that any asylum seeker who alleges domestic violence in the country from which she has come to the UK must for that reason alone be accorded an oral hearing. The Presidential Guidance Note deals with the question of how witnesses should be treated at an oral hearing.

The substantive question is whether the decision makers in the Home Office who wrote the letter of 22 May were clearly and unarguably right to find that the Appellant had no well-founded fear or persecution from agents of the state or on other Geneva Convention grounds and secondly, whether there was sufficiency of protection within Zimbabwe, given what the Home Office said was the availability of internal relocation in such a large and populous country.

I have myself given anxious scrutiny to this letter. I do not see that there is any arguable flaw in its reasoning. Of course, it is not that Zimbabwe is not a model country from the point of view of the rule of law, but the country of origin information set out in the letter shows on a careful analysis that it is painting too broad a brush to say that any divorced woman whose former husband from whom she separated 10 years ago must by virtue of the history be at risk of persecution even by him, let alone by agents of the state.

Mr Emezie has referred me to an e-mail from a friend of the Appellant in 2012 saying that her ex-husband was looking for her and was threatening violence against her. That does not, in my view, render the decision of the Home Office arguably wrong. Nor do the general print outs from sources relating to Zimbabwe; for example, the distressing statistics relating to domestic violence with a sexual element in 2012 which are in the papers.

There would, in my judgment, on the material available have been no grounds for overturning the findings in the letter about Zimbabwe as a whole.

The other aspect of the case on which reliance is placed which is specific to the Appellant is that she says she has scars attributable to ill treatment by her husband. But even now, 10 years after coming to this country, there is no medical evidence. There was no medical evidence before the Upper Tribunal. There is none before me. If the Appellant was indeed subjected to violence by her husband in and before 2005 and has scars as a result, I am sorry to hear it, but it does not, I have to say, give her an arguable claim for asylum here in 2015.

Accordingly, while I am grateful to Mr Emezie for his assistance and for the points he has made on the Appellant's behalf, I can find no grounds on which to grant a stay or permission to appeal. Accordingly, both are refused.