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

This is an appeal by the Secretary of State in a case involving a foreign criminal, MM, whom the Secretary of State wishes to deport. By a decision promulgated on 15 July 2015 the First-tier Tribunal (“FTT”) upheld an appeal by MM against his deportation. By a decision promulgated on 16 November 2016 the Upper Tribunal dismissed the Secretary of State’s appeal. The Secretary of State now appeals to this court with permission granted by Rafferty LJ.

MM is a citizen of Zimbabwe, born in 1980. He arrived in the United Kingdom in August 2002 and was granted indefinite leave to remain as a refugee on the ground that he faced persecution in Zimbabwe by the ruling ZANU-PF regime as a result of his activities in support of the Movement for Democratic Change (“MDC”) opposition party. MM claimed that he organised campaigns and rallies, distributed leaflets, canvassed for new members and overall was very active as a MDC member, although in his asylum interview he said he did not have a high position. According to MM, he was detained without charge for 14 months by reason of his activities, and then released. During his detention, he was beaten. As the Secretary of State accepted his claim for asylum, it was not necessary for a tribunal to make any findings of fact about his case. It appears that MM has not continued with his political activities since he has been in the United Kingdom. Certain of MM’s sisters were also granted asylum here by reason of their involvement with the MDC.

MM has severe mental health problems. He suffers from schizophrenia (schizoaffective disorder). In about 2004 he was placed in an open adult mental health ward in Nottingham. However, he absconded and went to stay at his sister’s house in Liverpool. On 5 June 2004 MM was babysitting his three year old niece when he conducted a serious assault upon her. He claimed that this was because he heard voices. After the assault he called the police.

On 20 August 2004 MM was convicted of one count of attempted rape in relation to his niece and three counts of sexual assault upon her. On 10 January 2005 MM was sentenced to a hospital order under sections 37 and 41 of the Mental Health Act 1983 and was required to sign the sex offender register indefinitely.

On 12 April 2012 MM was granted a conditional discharge from detention by a Mental Health Tribunal. He remains liable to recall should he fail to comply with the conditions of his discharge. The medical reports in relation to MM indicate that his schizophrenia has responded well to the drugs he has been prescribed and is currently under control. In particular, his schizophrenia has been effectively controlled by a drug called clozapine. It appears that he has been compliant with this medicines regime. While he takes the prescribed drugs, his risk to the public is assessed to be low.

On 13 June 2013 the Secretary of State wrote to MM to indicate that she was minded to make a deportation order to remove him from the United Kingdom and inviting him to make representations, which MM duly did. In addition, on 29 April 2014 and 20 June 2014 the Secretary of State wrote to MM to indicate that she intended to make a decision pursuant to Article 1C(5) of the 1951 Refugee Convention and para. 339A(v) of the Immigration Rules to cease recognition of MM as a refugee on the grounds that circumstances had improved in Zimbabwe so that he no longer faced a real risk of ill-treatment if returned there, and inviting him to make representations, which again he duly did.

By a decision letter dated 17 April 2015 the Secretary of State set out her decision to refuse MM’s protection and human rights claim made in opposition to his proposed deportation to Zimbabwe and also her decision to cease treating him as a refugee for the purposes of the Refugee Convention. In relation to both decisions an important part of the Secretary of State’s reasoning was that conditions had improved in Zimbabwe since 2002, as reviewed in the latest country guidance case of CM (EM country guidance; disclosure) Zimbabwe CG[2013] UKUT 59 (IAC) and supported by subsequent information, such that the return to Zimbabwe of a person “having no significant MDC profile” would not give rise to a real risk of ill-treatment of that person. The Secretary of State also considered that MM was not a person who had any significant political or MDC profile currently, noting in that regard that he had not been involved in politics or been a MDC activist during the 12 year period he had been in the United Kingdom. For these reasons, in the Secretary of State’s view MM would not be at any real risk of ill-treatment upon return to Zimbabwe; she was entitled to cease treating him as a refugee for the purposes of the Refugee Convention; and there would be no violation of his rights under Articles 2 and 3 of the European Convention on Human Rights (“ECHR”) (the right to life and the right not to be “subjected to torture or to inhuman or degrading treatment or punishment”, respectively) on grounds of risk of ill-treatment by the authorities if he was deported there. The Secretary of State also considered that there would be sufficient medical assistance available to MM in Zimbabwe to control his schizophrenia, so that again his return there would not violate his rights under Articles 2 and 3 of the ECHR on medical grounds. A further reason was given why MM could be deported even if he remained a refugee for the purposes of the Refugee Convention, namely that he had been convicted of a serious crime and was therefore presumed to represent a danger to the community of the United Kingdom (see section 72 of the Nationality, Immigration and Asylum Act 2002), so that under the regime for humanitarian protection under the Refugee Convention the United Kingdom was entitled to deport him to Zimbabwe pursuant to Article 33(2) of the Refugee Convention and relevant provisions of the Qualification Directive (EU Council Directive 2004/83/EC of 29 April 2004). The Secretary of State also rejected a claim that MM would face a real risk of ill-treatment in Zimbabwe on the grounds of what he claimed was his bi-sexuality and a further claim that his deportation would constitute a violation of his rights under Article 8 of the ECHR (right to respect for private and family life).

MM appealed to the FTT. The FTT allowed his appeal on asylum and human rights grounds. The FTT held: (i) the Secretary of State had failed to establish that MM would not face a real risk of ill-treatment upon return to Zimbabwe, so she could not cease to treat him as a refugee for the purposes of the Refugee Convention and in addition his deportation there would violate his rights under Articles 2 and 3 of the ECHR; (ii) MM had rebutted the presumption under section 72 of the 2002 Act that he was a danger to the community in the United Kingdom, despite the gravity of his offences, because of the medical evidence that MM’s mental illness was in full remission while he continued with his treatment regime in the United Kingdom, with the result that he continued to enjoy protection against deportation to Zimbabwe under Article 33 of the Refugee Convention; (iii) MM did not have a valid claim against deportation under Article 3 of the ECHR on the basis of risk to his mental health if removed to Zimbabwe, even though the FTT found that he would not be able to pay for the drugs he needed to control his severe mental illness and hence “would not, realistically, be able to access the health care that he needs”, on the grounds of the high threshold applicable for an Article 3 claim which the FTT took to be that he had to show that he was “at the point of death” ([39]); (iv) he was disbelieved on his evidence about his bi-sexuality, and failed to make out his case that he would suffer a risk of ill-treatment in Zimbabwe by reason of it; and (v) there were very compelling circumstances which would mean that MM’s deportation would violate his rights under Article 8 of the ECHR notwithstanding the strong public interest in his deportation as a foreign criminal under section 117C of the 2002 Act, because of the severe impact on MM’s mental health if he were deprived of his regular treatment, resulting in a risk not just to himself but also to others: “I find that if [MM] were returned to Zimbabwe there is a substantial risk that he would again find himself unable to resist the instructions from voices in his head to harm another person or persons” ([44]).

For present purposes the important part of the FTT’s judgment in relation to point (i) is at paras. [27]-[28]:

At para. [38] the FTT said that MM’s claim under Articles 2 and 3 of the ECHR:

The Secretary of State appealed to the Upper Tribunal. The grounds of appeal were, first, that the FTT had erred in its approach and conclusion under point (i); secondly, the FTT erred in finding under point (ii) that the presumption set out in section 72 of the 2002 Act had been rebutted by MM on the basis of the effectiveness of the medical treatment he was receiving in the United Kingdom; and thirdly, the FTT erred in upholding MM’s claim under Article 8 based on his medical condition, under point (v). The Secretary of State abandoned the second ground of appeal at the hearing in the Upper Tribunal. The Upper Tribunal found that the FTT had made no error of law in its determination in relation to points (i) (risk of ill-treatment on return to Zimbabwe) and (v) (breach of Article 8 by reason of inability to have access to medical treatment) and dismissed the appeal.

Accordingly, it is the decision of the FTT which is the operative judgment in this case. On this appeal the Secretary of State maintains that the FTT did err in law in its judgment and conclusion in respect of points (i) and (v). In her appeal, the Secretary of State also sought to introduce a new argument on point (ii), namely that the FTT gave insufficient weight in its application of section 72 to the seriousness of the crime committed by MM. Mr Mackenzie, for MM, accepts that this is a pure argument of law and we allowed Mr Payne, who appeared in this court for the Secretary of State, to make his submission about it.

Mr Payne also sought permission to introduce new grounds of appeal, pursuant to an application notice dated 24 April 2017. These were supported by a witness statement dated 21 April 2017 by Mr Jarvis, who had been the Secretary of State’s representative in the Upper Tribunal. We refused permission at the hearing before us for the Secretary of State to introduce these new grounds of appeal. They were introduced far too late in the day. There was no good explanation for the delay in raising them. They took issue with observations by the Upper Tribunal about the stance which it said had been taken by Mr Jarvis at the hearing before it, so they could and should have been included in the original grounds of appeal. Instead, the Secretary of State waited to obtain a transcript of the hearing. We were not told when that was sought. What we were told was that the proposed amended grounds and application were not produced until many weeks after the transcript was obtained. No explanation or good excuse was offered for any of this. This court cannot endorse such a lackadaisical approach to litigation, which is contrary to the overriding objective in CPR Part 1.1(2).

In my judgment, this appeal should be allowed and the case remitted to the Upper Tribunal for a fresh determination. In my view, as explained below, the FTT erred in its approach under point (i) (risk of ill-treatment on return) and point (v) (breach of Article 8 on medical grounds).

I do not accept that the FTT erred in its decision in relation to section 72 of the 2002 Act. In the relevant passage in its judgment at paras. [31]-[36] it plainly had very well in mind the gravity of MM’s offences and took that into account in its application of section 72. On the medical evidence before it, the FTT was entitled to find that MM’s schizophrenia was fully under control with medication and that he was motivated to ensure he continued to receive that medication, so that it could be said that he does not represent a danger to the community in the United Kingdom for the purposes of section 72, Article 33(2) of the Refugee Convention and the Qualification Directive and regulations made pursuant to it.

However, since the case is to be remitted for other reasons, I consider that the Upper Tribunal should consider all aspects of it afresh to reach its own conclusions on this and each other point. For instance, in relation to section 72 the Secretary of State has indicated that she would wish there to be an examination of whether MM can be relied upon to keep up with his medication. Also, I think it would be desirable for the Upper Tribunal to look again at whether MM has a good basis for resisting deportation under Article 3 of the ECHR on the grounds of the likely radical deterioration in his mental health if he is returned to Zimbabwe. Although we did not have the benefit of argument on this point, I have some doubt whether the principle to be applied under Article 3 in this case is necessarily as restrictive as the FTT thought it was. It seems to me to be arguable that to return someone to a country where they are likely to suffer a profound mental collapse, possibly amounting in effect to a destruction of their personality, might infringe the right under Article 3 to protection against torture and inhuman treatment and might qualify as one of those very exceptional cases in which lack of medical services in the home country might constitute a bar to deportation (see D v United Kingdom (1997) 24 EHRR 423 and N v United Kingdom (2008) 47 EHRR 885, GC). It may be that MM will face an uphill struggle to make out such a claim, but I consider that this issue should be open for fresh consideration by the Upper Tribunal when the case is remitted to it. Thus, although I consider that the FTT erred in treating this factor as decisive under Article 8 in circumstances in which there was no violation of Article 3, it is possible on a fresh assessment under Article 3 that MM could succeed under that article.

I turn to explain why I consider that the FTT erred in law in its analysis under point (i) (risk of ill-treatment on return) and point (v) (breach of Article 8).

In my view, the FTT erred in law in relation to this issue, first in its approach to the position under the Refugee Convention and the Qualification Directive and secondly in its application of Articles 2 and 3 of the ECHR. Articles 2 and 3 are Convention rights given effect in domestic law by the Human Rights Act 1998.

Section 84(1)(g) of the 2002 Act provides that an appeal against a deportation immigration decision may be brought on the grounds:

Article 1A of the Refugee Convention defines the persons who qualify as a “refugee” for the purposes of the Convention, being primarily those who have “a well-founded fear of being persecuted for reasons of race, religion, nationality membership of a particular social group or political opinion” in their home country. Where a person is recognised as a refugee within the scope of the Refugee Convention, that status can only be lost in accordance with the terms of the Refugee Convention, in particular at Article 1C.

Article 1C(5) provides:

The Qualification Directive establishes a common framework for EU Member States in applying the Refugee Convention. Article 11(1)(e) of the Directive reflects Article 1C(5).

“[A] durable change in conditions in a country of nationality that results in a refugee having no genuine fear of persecution on his return” will qualify as a relevant change in circumstances for the purposes of Article 1C(5): EN (Serbia) v Secretary of State for the Home Department[2009] EWCA Civ 630; [2010] QB 633, [95]-[96].

However, Article 1C(5) is framed more widely than this, and requires examination of whether there has been a relevant change in “the circumstances in connexion with which [a person] has been recognised as a refugee”. The circumstances in connection with which a person has been recognised as a refugee are likely to be a combination of the general political conditions in that person’s home country and some aspect of that person’s personal characteristics. Accordingly, a relevant change in circumstances for the purposes of Article 1C(5) might in a particular case also arise from a combination of changes in the general political conditions in the home country and in the individual’s personal characteristics, or even from a change just in the individual’s personal characteristics, if that change means that he now falls outside a group likely to be persecuted by the authorities of the home state. The relevant change must in each case be durable in nature.

In the present case there have been some changes in the general political situation in Zimbabwe since MM left the country, as set out in the latest country guidance case of CM. There has also been some change in MM’s personal circumstances, in that he has not engaged in political activities for many years. Both changes appear to be durable in nature. On one interpretation of his account, it appears that even in 2002 MM’s involvement with the MDC was at a low level, so it may well be that a prolonged period of political inactivity on his part will have significantly reduced his political profile as a hostile person so far as the ZANU-PF authorities are concerned. There is therefore a serious question whether Article 1C(5) applies in his case. Unfortunately, the FTT did not properly address this question at paras. [27]-[28] of its judgment.

The country guidance case of CM confirms findings already made in the country guidance case of EM and Others (Returnees) Zimbabwe CG [2011] UKUT 98 (IAC) to the effect that “it was in general not the case that significant problems would be faced by those without a significant MDC profile, or who would otherwise engage in political activities likely to attract the adverse attention of ZANU-PF” (CM at [211]).

Before the FTT in the present case, the Secretary of State’s submission was that MM’s present political profile as a MDC supporter was at such a level as not to be “significant” so as to meet the standard for adverse political interest from ZANU-PF as set out in CM. In para. [27] of the decision, the FTT judge said that there was insufficient evidence before him to make findings about the level of MM’s MDC profile and whether there would be parts of Zimbabwe where he would be safe.

In my judgment, this was an inappropriate abdication of responsibility by the FTT. The Secretary of State had made out a seriously arguable case that MM fell within the scope of Article 1C(5) on the evidence available and in the light of the country guidance in CM, with the result that (if correct) MM could not show that his removal to Zimbabwe “would breach the United Kingdom’s obligations under the Refugee Convention …”: see section 84(1)(g) of the 2002 Act. In my view, the FTT should have addressed that case and made relevant findings of fact on the basis of the evidence available in order to decide for itself whether there had been a sufficient change in “the circumstances in connexion with which [MM] has been recognised as a refugee” as to engage Article 1C(5), and hence decide for itself – as it was required to do – whether MM’s removal to Zimbabwe would breach the United Kingdom’s obligations under that Convention. The judge’s ruling at para. [28] that the Secretary of State “has not shown that it would now be safe for [MM] to return to Zimbabwe” was the product of the judge’s decision that a presumption to that effect should be applied, without proper examination of the evidence by him.

Mr Mackenzie, for MM, sought to meet this objection by arguing that the country guidance in CM does not cover the risk which a returning failed asylum-seeker would face in Zimbabwe upon being screened at the airport in Harare. According to Mr Mackenzie, the position in relation to risk at the airport remains as set out in the earlier country guidance case of HS (returning asylum seekers) Zimbabwe CG [2007] UKAIT 94, and that case shows that a person with any profile at all of previous support for the MDC would be at real risk of persecution for the purposes of the Refugee Convention. Upon examination, however, neither of these contentions is sustainable.

It is in fact clear that the guidance in CM covers what happens in terms of screening at Harare airport. The Upper Tribunal in CM examined up-to-date evidence about this (see [181]) and specifically made findings about the risk arising from the screening procedures at Harare airport at paras. [202]-[205]. It is true that the Upper Tribunal confirmed the country guidance given in HS ([203]), but that is because it rightly understood the findings in HS as being to the same effect as the findings it felt able to make on the further evidence in CM, namely that there is no scrutiny at the airport for positive indications of loyalty to ZANU-PF ([204]) and that “low level MDC supporters” are not the sort of activists whom the Tribunal in HS thought likely to fall foul of the authorities at the airport ([205]). The general guidance finding in CM at para. [211], quoted above, is in line with this. The important point for present purposes in relation to both para. [205] and para. [211] is the finding that the existence of a real risk of ill-treatment depends upon an individual’s profile as a MDC supporter being significant. As explained above, it was the Secretary of State’s case before the FTT that MM’s profile as a MDC supporter was not significant as circumstances presently stand, which submission the FTT failed properly to evaluate.

As regards the guidance in HS about the risk of return at Harare airport, it suffices to say that the Upper Tribunal in CM was correct in its understanding of the findings made in HS. The Tribunal in HS did not say that any level of involvement with the MDC in the past gave rise to a risk of ill-treatment at the airport. The Tribunal in HS adopted and re-affirmed findings made in the earlier cases of SM and Others (MDC – Internal flight – risk categories) Zimbabwe CG [2005] UKAIT 100 and AA (Risk for involuntary returnees) Zimbabwe CG [2006] UKAIT 61. As was found in SM, those deported from the United Kingdom to Zimbabwe are subject to interrogation on return ([41]) and “those who are suspected of being politically active with the MDC would be at real risk” ([42], note the present tense). At para. [43] in SM the Tribunal rejected a submission that every former member of the MDC faces a real risk of ill-treatment on return, saying instead that “each case must depend upon its own circumstances” in order to see whether the background and profile of an individual is such as to make it likely that he would be of interest to the authorities. The Tribunal in HS did not depart from this approach, which is in line with the approach of and findings made by the Upper Tribunal in CM.

The result of this analysis is that the FTT in the present case erred in its approach in respect of the Refugee Convention in relation to issue (i) and, subject to the argument on Article 8 addressed below, the case should be remitted to the Upper Tribunal for re-determination.

The position in relation to Articles 2 and 3 of the ECHR can therefore be dealt with more shortly. The FTT assumed that the position under the Refugee Convention and under the ECHR would be the same. In a broad sense, that is understandable, since if MM can show that he would face a real risk of persecution upon return to Zimbabwe then he will also have shown that he would face a real risk of ill-treatment contrary to Articles 2 and 3 of the ECHR. The representative appearing for the Secretary of State in the Upper Tribunal appears to have accepted this.

Nonetheless, it should be noted that where an individual like MM seeks to rely on his rights under Articles 2 and 3 of the ECHR to prevent deportation the onus is on him to show that under current circumstances he would face a real risk of ill-treatment on return. The FTT, however, appears at para. [38] to have applied a presumption that MM would face a real risk upon return to Zimbabwe now, because the Secretary of State had accepted in 2002 that he faced such a risk. In my view, the FTT should have examined the evidence regarding the current risk faced by MM.

Strictly, for the purposes of analysis under Articles 2 and 3 it is not incumbent on the Secretary of State to show that the change of circumstances condition in Article 1C(5) has been satisfied. But as a practical matter one can see that the examination of current risk and the examination of whether Article 1C(5) applies in relation to a person previously recognised as a “refugee” for the purposes of the Refugee Convention will tend to run together.

In my view, by contrast with the position in relation to Articles 2 and 3 of the ECHR, it is correct to say that for the purposes of Article 1C(5) of the Refugee Convention the onus is on the Secretary of State to show, in relation to a person previously recognised by her as a “refugee” under Article 1A, that there has been a relevant change of circumstances such that the Refugee Convention ceases to apply to them. Moreover, that interpretation of the Refugee Convention is reinforced by Article 14(2) of the Qualification Directive. Article 14(1) and (2) of the Directive provide as follows:

However, in practice this difference may again have little impact, since it will usually be appropriate to expect an individual to call attention in his evidence or representations to any aspect of his particular circumstances which would tend to show that he would be subject to a real risk of ill-treatment if deported (as Article 4(1) of the Qualification Directive also confirms) and to draw adverse inferences on the facts if he does not.

In so far as analysis under Articles 2 and 3 of the ECHR and analysis under Article 1A and 1C of the Refugee Convention give different answers, that may be significant. Where deportation would violate the individual’s rights under Article 2 or Article 3 of the ECHR, that operates as an absolute bar to such deportation. This may not be so under the Refugee Convention, since even in the case of someone who has been recognised as a “refugee” and in relation to whom Article 1C(5) does not apply, deportation might still be allowed under that Convention if the test in Article 33(2) is satisfied. It is in that context that section 72 of the 2002 Act is relevant.

The error by the FTT in relation to the risk of ill-treatment by the authorities in Zimbabwe would not be sufficient to justify this court in allowing the appeal by the Secretary of State if the FTT was correct in its further ruling that the deportation of MM would violate his rights under Article 8 of the ECHR. However, in my view the FTT fell into error on this point as well.

This court examined the operation of Article 3 and Article 8 of the ECHR in relation to the provision of medical treatment in considerable detail in GS (India) v Secretary of State for the Home Department[2015] EWCA Civ 40; [2015] 1 WLR 3312. The court regarded Article 3 as the primary applicable provision. If an individual’s case fails under Article 3, a claim under Article 8 based on a need for medical treatment “cannot prosper without some separate or additional factual element which brings the case within the Article 8 paradigm – the capacity to form and enjoy relationships – or a state of affairs having some affinity with the paradigm” (per Laws LJ at [86]). Laws LJ refers to an example given by Moses LJ in MM (Zimbabwe) v Secretary of State for the Home Department [2012] EWCA Civ 279 at [23], where he said:

At para. [87] in GS (India) Laws LJ also highlights the part of the judgment in MM (Zimbabwe) at [17]-[18] in which this court held that the same stringent principles in relation to when deprivation of medical treatment available in this country but not available in the individual’s home country would constitute a violation of Article 3 apply equally in relation to Article 8.

In our case, the FTT found that MM could not succeed under Article 3, because MM could not satisfy the stringent test applicable under that Article. In those circumstances, I consider that the FTT erred in holding that MM could nonetheless succeed in his claim under Article 8, even though it was based on the same basic point that MM would suffer a deterioration in his mental health by reason of the non-availability to him in Zimbabwe of the drugs which have been effective in the United Kingdom in restoring him to sanity. The FTT did not identify any strong Article 8 claim by MM independent of his claim to benefit from medical treatment, of a kind contemplated in MM (Zimbabwe) in the passage quoted above. The FTT also failed to apply the same stringent test under Article 8 as it had applied under Article 3.

In my judgment, therefore, the appeal should be allowed and the case remitted to the Upper Tribunal for re-determination. As I have said, however, in that re-determination the Upper Tribunal should examine afresh whether MM does have a good claim to resist deportation under Article 3 on the grounds of the likely effect upon him of being deprived of medical treatment for his severe schizophrenia.

For the reasons given above, I would allow the appeal and remit the case to the Upper Tribunal for a fresh determination on all points.

I agree.

I also agree.