(Immigration and Asylum Chamber) Appeal Number: AA/02214/2010
THE IMMIGRATION ACTS
Heard at Field House
On 30 May 2013
On 12 June 2013
UPPER TRIBUNAL JUDGE D E TAYLOR
TARISAI HALIYANA MASHAWI
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
For the Appellant: Ms L Targett-Parker, Counsel (30 May)
For the Respondent: Mr P Nath, Home Office Presenting Officer (30 May 2013)
DECISION AND DIRECTIONS
1. This is the Appellant's appeal against the decision of Judge Smith made following a hearing at Newport on 16th March 2010.
2. The Appellant is a citizen of Zimbabwe born on 17th May 1981. She entered the UK as a visitor in December 2001 and claimed asylum in January 2010. The refusal of her claim is the subject of the appeal before the judge.
3. The judge made a series of adverse findings and concluded that the Appellant had cynically tried to bring about the situation whereby she would be granted asylum because of anti-regime activities. He accepted that she had joined the Bournemouth branch of the ROHR very recently but said that any interest that she had in the organisation had come about since the rejection of her appeal against the refusal of a visa in November 2009. She was able to demonstrate only a very limited knowledge of the ROHR. He found that she did not attend a demonstration by them in Liverpool as claimed because she was unable to give even an approximation of where it had taken place. She had also failed to provide a subscription card, and although there was a letter dated 4th March 2010 from the ROHR interim Chairperson, he gave it little weight both because the author was not available to give evidence and because there was a discrepancy between the date given in the letter and the Appellant's evidence as to when she began her involvement in the organisation.
4. The judge took into account the fact that the Appellant had knowingly provided forged documents in respect of a previous application.
5. The judge noted that the Appellant had returned to Zimbabwe on three occasions, the last being in 2006, and did not encounter any difficulties with the Zimbabwean regime. He considered the then country guidance case of RN (Returnees) Zimbabwe CG  UKAIT 00083 and said there was nothing before him to suggest that there was a real possibility that the authorities in Zimbabwe would know of her having attended meetings of the ROHR nor that any of the photographs which had been taken of her would come to the attention of the Zimbabwean authorities.
6. The judge considered the Appellant's claim to remain on Article 8 grounds. He said that her relationship with the man she said was her boyfriend was not a close one. He had not attended the hearing in order to give evidence on her behalf. Neither did he accept that there was a family tie in the UK with her aunt – the Appellant lives independently with friends. He accepted that she enjoyed private life, having been in the UK for some eight years, but concluded that removal would not be disproportionate.
The Grounds of Application
7. The Appellant sought permission to appeal on the grounds that the judge had erred in law in concluding that the Appellant was not credible in respect of her claimed commitment to the ROHR, that the Appellant had shown that she would be unable to show loyalty to the regime on return and had misapplied the principles of Razgar.
8. Permission to appeal was granted by me on 20th July 2010. It was my view that the judge was fully entitled to reach the adverse credibility findings which he did for the reasons which he gave but I accepted that it was arguable that the Immigration Judge did not properly apply the country guidance case of RN.
9. Directions were given to the parties on 13th October 2010 stating that the Upper Tribunal would hear submissions for the purpose of determining whether the First-tier Tribunal made an error of law and, if one was established, the Upper Tribunal would be able to remake the decision without any further hearing.
10. Thereafter the matter seems to have gone into abeyance for an inexplicable period of almost three years. Hearing notices were finally sent out on 15th March 2013.
11. Prior to the hearing the Appellant's present representatives stated that they were yet to receive a complete set of the Appellant's papers as well as the Respondent's bundle because they had been unable to obtain her previous file from her former representatives. Furthermore the Chairperson of the ROHR would not be available to give evidence. They asked for an adjournment.
12. Mr Haywood stated at the outset that whilst he was in a position to deal with the error of law hearing he would not be able to proceed to a full hearing of this appeal because his instructing solicitors had not been able to obtain the relevant papers from the former representatives, and in any event were unable to obtain funding to prepare for a full hearing until the error of law had been found. There had been a substantial delay between the first hearing and now, and matters had moved on, and he needed to be in a position to present the case to the basis of the facts as they currently stand. He relied on his grounds and submitted that the error of law was identified in the grant of permission. The judge had not made any decision on the central issue in this case, namely whether the Appellant would be in a position to demonstrate loyalty to the regime on return.
13. Mr Avery accepted that the judge had not properly considered the case of RN but in his view the error was not material because, on the basis of the present country guidance and the facts as found by the judge, the Appellant could not succeed.
14. In RN, which was applicable at the time of the judge’s decision, the Tribunal held that
“A person who is unable to demonstrate that he is a member or supporter of ZANU-PF or otherwise loyal to or associated with the regime when asked to do so by any of the various groups deployed across the country by the Zimbabwean regime to maintain its authority and hold on power will be at real risk of being subjected to ill-treatment amounting to persecution and serious harm such as to infringe Article 3 of the ECHR.
That risk arises throughout the country in both urban and rural areas. ...
It remains the position in our judgment that a person returning to his home area from the UK as a failed asylum seeker will not generally be at risk on that account alone, although in some cases that may in fact be sufficient to give rise to a real risk. Each case will turn on its own facts and the particular circumstances of the individual are to be assessed as a whole. If such a person (and as we explain below there may be a not insignificant number) is in fact associated with the regime or is otherwise a person who would be returning to a milieu where loyalty to the regime is assumed, he will not be at any real risk simply because he has spent time in the UK and sought to extend his stay by making a false asylum claim.
But, apart from in those circumstances, having made an unsuccessful asylum claim in the UK will make it very difficult for the returnee to demonstrate the loyalty to the regime and the ruling party necessary to avoid the risk of serious harm at the hands of the War Veterans or militias that are likely to be encountered either on the way to the home area or after having returned there. This is because, even if such a person is not returning to one of the areas where the risk arises simply from being resident there, he will be unable to demonstrate that he voted for the ZANU-PF and so he may be assumed to be a supporter of the opposition, that being sufficient to give rise to a real risk of being subjected to ill-treatment such as to infringe Article 3.”
15. The judge did not address the central question in the appeal, namely whether the Appellant would in fact be in a position to demonstrate loyalty on return. That is an error of law. The decision is set aside.
16. With respect to the remaking of the decision, my initial view was that it ought to be possible to move straight on to decide the appeal on the basis of the findings of the Immigration Judge since there is no error of law in his findings of fact which were plainly open to him. Mr Haywood opened his submissions by stating that the judge was wrong to say that little weight ought to be given to the letter from the ROHR, but that in itself is an acknowledgement that he merely disagrees with the decision. The question of weight is entirely a matter for the assessment of the judge, who carefully considered all of the relevant evidence and came to conclusions based on that evidence. There is nothing in the grounds which establishes any error in the judge’s application of Razgar or his approach to the decision on Article 8.
17. The findings of fact in the First-tier Tribunal will be the starting point for the resumption of this case on the 30th May 2013 before Mrs D Taylor at Field House. The Appellant is directed to ensure that all of the evidence upon which she seeks to rely is served upon both the Tribunal and the Respondent 7 days before that hearing. There will be no further adjournment of this matter.
The Resumed Hearing
18. At the resumed hearing I heard oral evidence from the Appellant, from the Chair of ROHR, Ephraim Tapa and the Appellant’s aunt, Jemina Nyatsambo. The Appellant produced two bundles of papers. The first includes witness statements, the death certificate of her father and evidence that her sister is outside Zimbabwe. The second supplementary bundle relates to the Appellant’s activities with the ROHR in the UK and background evidence from Zimbabwe. I was also given a skeleton argument by Ms Targett-Parker and a copy of CM (EM country guidance disclosure) Zimbabwe CG  UKUT 00059.
The Appellant’s Case
19. The Appellant accepted in her oral evidence that her interest in politics started after her arrival in the UK and that, prior to coming here, she had no previous fear of persecution in Zimbabwe. She first came to the UK in 2001 as a visitor and then decided to study accountancy here. She has completed all of her accountancy exams save for one. Her mother died very shortly after she came and her father in 2011. She has no remaining siblings in Zimbabwe and all of her friends are here. She accepted that from the start she had wanted to stay in the UK and never considered going back because she had nothing to return to in Zimbabwe.
20. The Appellant says that her brother was assaulted by ZANU-PF in 2004 but it is clear that this did not play any part in her present claim because she subsequently went back to Zimbabwe for three weeks in August 2006.
21. The Appellant acknowledged that she did provide forged bank statements but says that she allowed herself to be misled by crooked immigration advisors and she otherwise has an unblemished record of honesty and integrity.
22. It is her case that she first attended a Zimbabwe vigil in London in 2007 and joined the Bournemouth branch of the ROHR in January 2009.
23. The Appellant has produced evidence of her involvement with Bournemouth ROHR. There is a copy of the Bournemouth minutes dated 29th May 2010 when the Appellant was introduced as a new member. She says that this was a typing error and a mistake since she had been with the group for over a year. There is evidence of her attendance at meetings in January and February 2010.
24. No minutes had been produced for the group between November 2010 and September 2012 because none were held during that period. The Appellant said that there were issues with the HQ and people became discouraged. Mr Tapa in his evidence said that during that time there was a disinformation campaign against him which led to difficulties within the organisation.
25. The Appellant was elected as secretary of the Bournemouth branch on 7th August 2010. Mr Tapa, who is the founder and president of the ROHR said that he knew the Appellant as a member of the Bournemouth branch having first met her in 2009 and again in 2010 when she was elected to the position of branch secretary. He had also seen her at a number of vigils and fundraising events. He said that he did not give evidence on behalf of all members of the ROHR but only outstanding and consistent members. The Appellant had been consistent and loyal and was passionate about the human rights cause and he felt compelled to support her.
26. He said that the purpose of the organisation was to raise awareness of human rights abuses and to sponsor resistance activities in Zimbabwe and to provide a voice to the voiceless there. If active members were sent back they would be targeted. The organisation had had to move its head office five times in Zimbabwe because of targeting. Their activists were killed in 2008 and his own son was arrested in 2011 when he returned to Zimbabwe. His younger brother was also detained for half a day at the airport.
27. Mr Tapa said that the authorities could find information about the organisation from the internet. The Appellant has provided a number of examples of her being quoted on zimpolitics.net and there are photographs of her taken with other activists at ROHR gatherings in the UK on the same website and on a friend’s flickr account.
28. It was put to the Appellant and to Mr Tapa that the Appellant’s knowledge of the ROHR was lacking when she was interviewed. Mr Tapa said that many members did not know every detail because they were focusing on human rights abuse.
The Respondent’s Case
29. The Respondent does not accept that the Appellant is a genuine and committed human rights activist.
30. At her interview she was asked whether the ROHR had a motto and the Appellant said that she did not think that it did. However on the ROHR’s site its motto is said to be “peace, justice and freedom”. Moreover the motto is imprinted on all ROHR T-shirts. She ought therefore to have been aware of the words of the motto or at the least be aware that it actually exists. Furthermore she was not able to identify the emblem of the ROHR which is the scales of justice which is on the website and imprinted on the T-shirts.
31. The Appellant was unable to identify the approximate location of the demonstration which she said she had attended in Liverpool nor to have been able to recall the date or even the approximate month. She claimed to be a paid-up member of the ROHR but did not possess a subscription card at the point of he asylum interview on 13th January 2010 and gave discrepant explanations for the failure to produce the card. Her answers at interview were basic, generalised and non-specific and did not illustrate that she had undertaken membership activities with the ROHR as claimed.
32. The Respondent’s view is that the Appellant’s activities with the ROHR were undertaken solely with a view to supporting her asylum claim which was made on 5th January 2010, shortly after the dismissal of her appeal against the refusal to further renew her student visa on 9th November 2009. Her credibility was damaged further because she had produced forged bank statements in support of her application for an extension of her stay in the UK as a student.
Findings and Conclusions
33. There is no documentary evidence to support the Appellant’s assertion that she had any interest in politics prior to 2010 when records from the Bournemouth branch of the ROHR show that she began to attend meetings there. I find that she joined the branch in January 2010 which is not inconsistent with her being mentioned in the minutes of May 2010 as being a new member. Mr Tapa said that he thought that he first met her in 2009 but there is no reason why he should remember a meeting with her in 2009 and the evidence points to her only becoming involved in the organisation at the point when she was claiming asylum. The Appellant is an intelligent young woman, having almost completed her accountancy exams. Her lack of knowledge of the ROHR when she was interviewed on 5th January 2010 is consistent with her only having very recent involvement with the organisation.
34. The findings of Immigration Judge Smith are my starting point and nothing in the evidence today would cause me to depart from those findings, namely that the Appellant’s motivation for joining the ROHR was in order to support a late claim for asylum occasioned by the dismissal of her appeal against the refusal to renew her student visa. Like Judge Smith I reject the evidence that the Appellant has had any involvement in demonstrations for the ROHR since 2007 and find that her involvement began either in very late 2009 or more probably 2010.
35. The evidence does show however that since August 2010 the Appellant has been the Bournemouth branch secretary of the ROHR albeit that the branch has not been particularly active and there was a lengthy period when no meetings at all were held. Most importantly, Ephraim Tapa would not have taken time away from his work as a probation officer in order to attend the Tribunal hearing had he not genuinely believed that the Appellant was a committed member of the organisation and, as he put it, passionate about human rights causes. The Appellant herself gave a significant flavour of that commitment in her evidence. I was impressed with the evidence of Mr Tapa who clearly himself has a significant profile.
36. I therefore conclude that at the time of her interview and indeed at the time of her previous hearing in March 2010 the Appellant’s interest in the ROHR was primarily brought about by her express wish to remain in the UK since she had little to return to in Zimbabwe. However over the intervening period, during which there was an extensive delay on the part of the Tribunal, I accept that the Appellant’s commitment to the cause of ending human rights abuse in Zimbabwe has grown and is sincere.
37. Mr Nath in his submissions accepted that the ROHR was a credible organisation although he said that it was not effective in relaying information to its members, organisation had some failings and there was no evidence that members returning to Zimbabwe had any difficulties. It would be safe for the Appellant to live in Zimbabwe having gained substantial experience in the UK and almost having qualified as an accountant.
38. The assessment of risk on return must be made in accordance with the Tribunal’s guidance in CM. Ms Targett-Parker undertook to do a search of that case for references to the ROHR but, since she did not contact my clerk with the result of her search, I have to conclude that there are no specific references in the country guidance case.
39. In CM the Tribunal re-affirmed the country guidance as set out in EM & Others (returnees) Zimbabwe CG  UKUT 98 which found that there had been a durable change since RN (returnees) Zimbabwe CG 2008 UKAIT 00083 which was the country guidance case governing the decision by the Immigration Judge. As a general matter there was significantly less politically motivated violence in Zimbabwe compared with the situation considered by the AIT in RN and in particular the evidence did not show that the return of a failed asylum seeker from the UK, having no significant MDC profile, would result in that person facing a real risk of having to demonstrate loyalty to the ZANU-PF. The position was otherwise in the case of a person without ZANU-PF connections returning from the UK after a significant absence to a rural area of Zimbabwe.
40. The Tribunal found that a returnee to Harare would in general face no significant difficulties if going to a low density or medium density area. Whilst the socio-economic situation in high density areas is more challenging in general a person without ZANU-PF connections will not face significant problems there including a loyalty test unless her or she has a significant MDC profile which might cause him or her to feature on a list of those targeted for harassment or would otherwise engage in political activities likely to attract the adverse attention of ZANU-PF or would be reasonably likely to engage in such activities but for a fear of thereby coming to the adverse attention of ZANU-PF.
41. The delay by the Tribunal in listing this case for over three years has enabled the Appellant to develop a genuine commitment to the ROHR and there is evidence of that commitment on the internet both in relation to her position as secretary of the Bournemouth branch and also her support for the organisation more widely. I accept that she does not have immediate family to return to in Harare and that she has not completed her accountancy qualifications. She has been working as a healthcare assistant in the UK. In these circumstances she may well have to live in a high density area and would be returning to a milieu in which problems with ZANU-PF may arise. The Appellant has demonstrated commitment to the human rights cause which would continue in Zimbabwe. She is a person who might be required to demonstrate loyalty to ZANU-PF and would be unable to do so.
42. It is the Appellant’s case that the danger also arises at the airport. She says that her relatively prominent role within the organisation as secretary of the Bournemouth branch would put her at risk since the ROHR is monitored by ZANU-PF organisations. She has written an article posted on the website www.zimpolitics.net and her presence at the meetings and in the photographs show that she has been involved in recent anti-regime activity. The Tribunal in CM reaffirmed the guidance in HS (returning asylum seekers) Zimbabwe CG  UKAIT 00094 which held that the process of screening returning passengers is an intelligence led process and the CIO will generally have identified from the passenger manifest in advance, based upon such intelligence, those passengers in whom there is any possible interest. There is a real possibility that the Appellant’s name would come to their attention as a consequence of her activities in the UK. Her activities for the ROHR in the UK, as published on the internet, may have led her to be featured on a list of those targeted for harassment. I accept the evidence of Mr Tapa that his relatives were targeted on return and whilst they would in all likelihood have a higher profile than that of the Appellant, she is a young female without family support and vulnerable.
43. The Appellant therefore succeeds on the basis that she has demonstrated a real possibility of risk of ill-treatment on return.
44. The decision of the original judge is set aside. The following decision is substituted. The Appellant’s appeal is allowed on asylum grounds.
Upper Tribunal Judge Taylor