Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/02705/2012

THE IMMIGRATION ACTS

Heard at North Shields
Determination Sent
on 5th December 2013
on 19th December 2013

Before

UPPER TRIBUNAL JUDGE HANSON

Between

K C
(Anonymity direction made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: In person.
For the Respondent: Mr McVeety – Senior Home Office Presenting Officer.

DETERMINATION AND REASONS

1. This is an appeal against a determination of First-tier Tribunal Judge Hands promulgated following a hearing at North Shields on 13th April 2012. Permission to appeal was granted to the Appellant on the basis Judge Hands failed to analyse the risk on return by reference to the country guidance case of EM and others of which there is no mention in the determination.
2. Judge Hands made a number of adverse credibility findings against the Appellant which are not challenged in the application for permission to appeal. Her conclusions are summarised in paragraph 34 of the determination in the following terms:
34. Taking the Appellant’s claim at its highest, the Appellant is the victim of an attack that resulted in the loss of his right eye. Such an event is a horrendous experience and one no one should suffer. The Appellant did receive treatment and there is an indication he received some counselling both in Zimbabwe and in the United Kingdom. However, it does not place the Appellant in a social group that is persecuted in Zimbabwe and nor does the assault itself indicate that he has been persecuted in the past. The risk of future persecution has not been established as he has freely admitted his assailants were brought to justice by the Zimbabwean authorities. The Appellant has not been consistent or reliable in the evidence he has placed before me. The Appellant’s account of events appears to be opportunistic and based on facts that would establish a reason for him to be granted asylum. His inability to provide consistent evidence and the unlikely nature of his entire claim leads me to find that he is not a credible witness and that his account of events cannot be relied upon. I find that he has fabricated the story in order to substantiate his erroneous claim for asylum and that he has in fact travelled to the United Kingdom of the reasons he claimed in his application for a visa which was to receive medical treatment following the loss of his eye in a random attack on him by unknown thugs who have since been punished.
3. Judge Hands found there was nothing to indicate that the Appellant will be persecuted in Zimbabwe on return and that it was not reasonably likely that the Zimbabwean authorities would have an interest in him [35]. His credibility was also found to be damaged by virtue of section 8 of the Asylum and Immigration (Treatment of Claimants etc) Act 2004 as he entered the United Kingdom in August 2011 with leave to remain for two months but failed to claim asylum at the earliest opportunity [37].
Discussion
4. The Appellant appeared in person was asked why he could not return to Zimbabwe at this time. He stated that if returned he will be killed and maintains the risk is real both at the airport and within Zimbabwe. He claims he is unable to demonstrate support for Zanu-PF.
5. I accept the Appellant has demonstrated a subjective fear of returning to Zimbabwe but the issue is whether it is objectively well founded.
6. In relation to risk on return at the airport the current relevant country guidance case remains HS (returning asylum seekers) Zimbabwe CG [2007] UKAIT 00094 in which the Tribunal found 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. The fact of having made an asylum claim abroad is not something that in itself will give rise to adverse interest on return. The main focus of the operation to identify those who may be of adverse interest remains those who are perceived to be politically active in support of the opposition although anyone perceived to be a threat to or a critic of the regime will attract interest. At paragraph 102 the tribunal had said: “The evidence concerning the CIO establishes clearly that anyone who comes to the attention of the CIO and is perceived to be an enemy of the regime faces a very real risk of being subjected to physical ill-treatment”.
7. The burden is upon the Appellant to prove that his profile is such that there is reason to suspect an adverse political, criminal or military profile of the type identified in AA(2), either actual or imputed, will be given to him by his potential persecutors. The unchallenged findings regarding his profile do not show he had any such adverse political profile in Zimbabwe and there is no evidence to show that he has engaged in any sur place activities in the United Kingdom such that he will be at risk of being detained, questioned, and ill treated at the point of return. The Appellant has failed to substantiate his claim that he will not be able to transit the airport and enter Zimbabwe. His claim to face a real risk of detention and ill-treatment at the point of return is not objectively substantiated.
8. Risk beyond the airport has to be assessed in light of the case of CM (EM country guidance; disclosure) Zimbabwe CG [2013] UKUT 00059(IAC) in which the findings in EM were re-stated. It was found in particular that
(6) A returnee to Bulawayo will in general not suffer the adverse attention of ZANU-PF, including the security forces, even if he or she has a significant MDC profile;
9. The Appellant confirmed in his oral evidence that his family is from Bulawayo and that is the place to which he will return. This Appellant has no adverse political profile and has failed to substantiate his claim that he will come to the adverse attention of the government or any of the militia groups in his hometown.
10. The Appellant's subjective fear is not objectively well founded and I find he has failed to substantiate his claim that he will face a real risk of ill treatment sufficient to engage the United Kingdom's obligations under the Refugee or any other international conventions so as to warrant his appeal succeeding. As a result the appeal is dismissed on all grounds.
Decision
11. The First-tier Tribunal Judge materially erred in law. I set aside the decision of the original Judge. I remake the decision as follows. This appeal is dismissed.
Anonymity.
12. The First-tier Tribunal made an order pursuant to rule 45(4)(i) of the Asylum and Immigration Tribunal (Procedure) Rules 2005. I continue that order (pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008).

Signed……………………………………………….
Upper Tribunal Judge Hanson
Dated the 5th December 2013