Tribunal decisions

The decision

APPEAL No. HX43205-01
RB (Personal-Disability) Zimbabwe CG [2002] UKIAT 04144

IMMIGRATION APPEAL TRIBUNAL

Date of hearing: 2 August 2002
Date Determination notified:

............03/09/2002................

Before:

Mr. P. R. Moulden (Chairman)
HH Judge D. Holden

Between

RITA BLACKBURN
Appellant
and

THE SECRETARY OF STATE FOR
THE HOME DEPARTMENT
Respondent

DETERMINATION AND REASONS

1. The Appellant is a citizen of Zimbabwe. She has been given leave to appeal the determination of an Adjudicator (Mr M. Shrimpton) dismissing her appeal against the Respondent's decision to give directions for her removal from the United Kingdom and to refuse asylum.

2. Ms M. Canavan of RLC appeared for the Appellant. Mr M. Davidson, a Home Office Presenting Officer, represented the Respondent.

3. The Appellant arrived in the United Kingdom on 26 November 2001 and was given six months leave to enter. She claimed asylum on 12 June 2001. Following the Respondent's decision on 17 August 2001 the Adjudicator heard the appeal on 4 March 2002 and leave to appeal was granted on 13 June 2002

4. We have Appellant's bundle containing 162 pages, RLC's letter to the Home Office of 19 April 2002 and their reply of 19 July 2002. The Respondent submitted copies of the tribunal determination Nhundu and Chiwera (01/TH/0613), the Country Assessment for April 2002 and the US State Department Report of February 2001.

5. The Adjudicator found the Appellant to be a credible witness. Her claim was argued before the Adjudicator and is argued before us under Articles 3 and 8. The Refugee Convention claim is no longer pursued. The Adjudicator found that the Appellant was, in the words of the medical report, "mildly educationally sub normal" with a "moderate learning disability" and below average intelligence. The medical report described her as "suffering from dwarfism". The Adjudicator preferred the phrase "suffering from restricted growth. The Appellant appeared before the Adjudicator and before us. She is of a distinctively small stature. Her passport gives her height as 1.3 m.

6. The medical report records that the Appellant was raped when four years of age. The Adjudicator found that in Zimbabwe there was particularly harsh customary discrimination against people with disabilities. He concluded that to remove her to Zimbabwe would not breach her human rights under Articles 3 or 8. Removal would not be disproportionate. He went on, in paragraph 19 of the determination to say, "that being said, I accept the facts that this lady has to some extent been abandoned by her family, she has no doubt been called names and treated harshly whilst in Zimbabwe and I accept that, sadly, in Zimbabwean society those with disabilities, having regard to the evidence in front of me, undisputed, are not treated with the respect and humanity they deserve. None of this however comes anywhere near engaging the international obligation of this country and the appeal has to be dismissed". The Adjudicator did not make a recommendation but came close to it by suggesting that no "right thinking person would criticise the Secretary of State for not sending this lady back and taking a compassionate view".

7. We take a different view. We find that on the facts of this case and the further country information before us, it would infringe the Appellant's Article 3 and 8 rights to return her to Zimbabwe. The conclusion turns on the very particular facts of the case which include the following.

8. The Appellant lived with her family for the whole of her life until she left Zimbabwe. The family consistes of her parents and three siblings. She left school at 17 without having passed any examinations, was unable to find work and stayed at home for approximately two years. She then found work as a teacher's aide or childminder at a nursery. The parents of a child at the nursery drove her from home to school and back each day. The nursery is now closed. She is the only member of the family who suffers from dwarfism. She was bullied and insulted at school. She has a moderate learning disability and an IQ of 85. She was raped at four years of age, although the psychologist whose report is before us was not sure to what extent her present mental health might relate to this. The Appellant has travelled abroad on a number of occasions and the psychologist concluded that this was at the instigation of her family and, more than anything, to have her work as a domestic servant. He found that she had suffered continuous emotional and social deprivation. He said, "my contention is that Miss Blackburn is of limited intelligence, is confused and vulnerable, and may find the judicial process beyond her normal experience and therefore her ability to cope".

9. Amongst the evidence contained in the Appellant bundle is a report from Alexander Phiri who is the General Secretary of the Southern African Federation of the Disabled. From the Danish report to which we will refer he appears to be held in high regard. In an e-mail to the Appellant's representatives dated 18 July 2002, he states, "I think it is now public knowledge that things are not well in Zimbabwe. The economic situation is at its lowest ebb. Currently, there is a shortage of food and medicine, and the social service and health system is almost collapsing due to the country's political problem. Due to a shortage of foreign currency, most industries are closing, hence the employment sector is shrinking, and more and more people are getting out of employment. In view of all these numerous problems many disabled people find themselves on the street to beg for survival. Disabled people who used to rely on government's social services, are no longer receiving their support they need. Charitable institutions and NGOs who used to render assistance to vulnerable groups and the poor are no longer doing so, and at the most working at very low capacity due to dwindling donor support. You may already be aware that some "smart sanctions" are being applied on Zimbabwe by the international community and disabled people are being caught in the entangle".

10. The US Department of State report for 2001 states, under the heading "Persons with disabilities", "President Mugabe appointed a disability activist to Parliament in 1995 to represent the needs of persons with disabilities. The law specifically prohibits discrimination against person with disabilities in employment, admission to public places, or provision of services and is viewed by advocates of persons with disabilities as model legislation. However, in practice the lack of resources for training and education severely hampers the ability of persons with disabilities to compete for scarce jobs. The law stipulates that government buildings should be accessible to persons with disabilities: however, implementation of this policy has been slow" and "Persons with disabilities face particularly harsh customary discrimination. According to traditional belief, persons with disabilities are considered bewitched and reports of children with disabilities being hidden when visitors arrive are common."

11. The Danish Council of Organisations of Disabled People Country Strategy report on Zimbabwe for 2001 includes the following passages, "In the National HIV/AIDS policy from December 1999 people with disability is a totally neglected group despite the fact that other particularly vulnerable groups are mentioned, for example children, sex workers, prisoners etc. Yet women and children with disability, in particular mental and communicationally challenged, are at high risk of sexual abuse and thus to contract HIV." Also, "People with learning disabilities in Zimbabwe are often confused with the mentally ill and carry strong negative labels....... The problems of employment and independent living are huge for this particular group".

12. The Respondent's letter of 10 June 2002 (p 79 and 80 of the Appellant's bundle) confirms that the Respondent has suspended all removals to Zimbabwe.

13. Mr Davidson submitted that the Adjudicator was fully aware of the objective situation in Zimbabwe. However, on questioning the assertion, he accepted that the hearing was in March, before the full effect of the March 2002 elections in Zimbabwe had become known. What happened to the Appellant when she was four was not likely to be an indication of current vulnerability. She had managed to work in a nursery. She was able to care for herself. He accepted that before she left Zimbabwe she was always living in a family environment, which no longer obtained. On the facts the Adjudicator's conclusion was reasonable. The article 8 reasoning was perhaps not as detailed as it might have been but was still safe. Article 14 was not engaged and was not freestanding.

14. In order to engage Article 3 the Appellant has to establish a reasonable likelihood that, at the date of the hearing, if she were returned to Zimbabwe she would be subjected to torture or to inhuman or degrading treatment or punishment. The level of severity is set at a high threshold. We find that what is likely to happen to the Appellant crosses this threshold. If she returns to Zimbabwe she would not have the family support she enjoyed whilst living there. Her family appear to have deserted her. They are now in Canada or the USA. She suffers from a moderate learning disability and is of below average intelligence. Her appearance is immediately distinctive because of her very small stature. The country information shows that those whose appearance marks them as disabled suffer particularly harsh customary discrimination and are often regarded as bewitched. The Appellant was raped when she was four years of age. This is likely to make her more vulnerable to the consequences of further sexual abuse. The Danish report shows that women and children with disabilities are at high risk of sexual abuse and thus HIV. The Appellant has no job. The report from Alexander Phiri, which we regard as reliable, states that she is likely to find herself on the streets begging for survival. This is supported by recent reports of conditions in Zimbabwe, particularly massive unemployment and food shortages. The Respondent's current policy not to return anyone to Zimbabwe, disabled or otherwise, is a material factor.

15. We find that we should take Article 14 into account. This provides, "The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status. We know of no authority on the point but find that discrimination on the grounds of disability would be discrimination on the ground of "other status". It is not of course a freestanding Article. It must be taken in conjunction with another Article, in this case Articles 3 and 8. On the country information it is clear that there is disability discrimination in Zimbabwe and, what is more, disability discrimination against which the authorities do not provide a sufficiency of protection. The tribunal in the starred determination, Devaseelan [2002] UKIAT 00702 considered Article 14 both generally and in conjunction with Article 3. We do not need to consider whether this is a case where the application of Article 14 discrimination might make the treatment the Appellant is likely to suffer cross the Article 3 threshold in circumstances where it would not have done so had Article 14 not been applied. We find that this is a case where the Article 3 threshold is crossed even if Article 14 is not applied. However, the evidence of discrimination has assisted the Appellant in making her case (see paragraph 120 of Devaseelan).

16. The Appellant succeeds under Article 3. She also succeeds under Article 8: to return her would infringe her physical and moral integrity, at a lower level of severity than a breach of Article 3. It would not be proportionate to the Respondent's legitimate aim.

17. We allow the appeal.

........................................
P. R. Moulden
Vice-President.