The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/02745/2013


Heard at Stoke
Determination Promulgated
on 30th October 2013
On 23rd December 2013




(Anonymity order in force)


For the Appellant: Mrs V James instructed by Aman Solicitors Advocates
For the Respondent: Mr M Hussain – Senior Home Office Presenting Officer.


1. This is an appeal against a determination of First-tier Tribunal Judge Frankish who, in a determination promulgated on 4th June 2013, dismissed the Appellants appeal on all grounds. A direction for his removal to Zimbabwe pursuant to s47 IANA 2006 was withdrawn at the hearing.
2. The Appellant is a Zimbabwe national born on the 7th July 1972. Having considered the evidence and reminded himself of the relevant law Judge Frankish set out his conclusions in paragraph 28 and 29 of the determination as follows:
28. I have concluded that the appellant will not be seen as an MDC supporter. He will be free to return home and resume making a living as before. If he so wishes, Harare is available to him (3(5) above) where he has the benefit of family connections. The refugee claim is not made out or, along with it, articles 2 or 3 or the claim for humanitarian protection.
29. Article 8 does not arise under the Rules (276ADE), the appellant not having been here for twenty years. It is argued in terms of Razgar –v- SSHD (2004) UKHL 27. However, although the appellant has two siblings who have managed to settle in the UK, he has more extensive family in Zimbabwe including other sibling, wife and children. On the basis of an overstayed visit visa of some twelve months plus asylum claim, I do to find that the appellant passes the first stage of Razgar –v- SSHD (2004) UKHL 27, the UK connection being merely two adult siblings (see Konstatinov –v- The Netherlands (2007) ECHR 336; Advic –v- UK confirmed by the Court of Appeal in AAO –v- ECO (2011) EWCA Civ 840).
3. Permission to appeal to the Upper Tribunal was initially refused but granted on a renewed application by Upper Tribunal Judge Kebede on 12th August 2013 on the basis it was arguable that a misunderstanding by Judge Frankish as to the Appellant’s wife’s whereabouts affected his overall credibility findings. It is also said to be arguable that the findings in relation to the Appellant’s experiences subsequent to October 2011 were inadequately reasoned given the fact the Appellant was the General Secretary of the residents association.
4. The grounds allege a mistake of fact in paragraph 17 of the determination in which Judge Frankish stated:
17. Clearly the appellant’s wife was privy to all the experiences to which he refers. Despite this, after her arrival in the UK with the appellant on a visit visa, she chose not to linger on in the UK having achieved the purpose of the one/two month visit they had applied for (VAF page 3). Instead, she returned home straight after Christmas (27.12.11) as she was expected to do so by the visa officer. Family details are blotted out on the statement of evidence form as usual. We are not told what has become of the appellant’s children aged nine and twelve save for the indication in the rebuttal statement (14 (ii)) indicating that they are with the wife in Zimbabwe. I find the wife’s return to Zimbabwe to be highly adverse to his claim to be at risk in that country for the following reasons.
5. Judge Frankish sets out a number of what were considered to be relevant factors which includes a reference to the perceived position of the Appellants wife.
6. I accept that mistake of fact can amount to an error of law. In E and R (2004) EWCA Civ 49 the Court of Appeal said that “a mistake of fact giving rise to unfairness is a separate head of challenge in an appeal on a point of law, at least in those statutory contexts where the parties share an interest in co-operating to achieve the correct result. Asylum law is undoubtedly such an area.” The Court of Appeal set out the ordinary requirements for a finding of unfairness as follows:
i) There must have been a mistake as to an existing fact including a mistake as to the availability of evidence on a particular fact;
ii) The fact or evidence must have been established, in the sense that it was uncontentious and objectively verifiable;
iii) The appellant (or his advisors) must not have been responsible for the mistake; and
iv) The mistake must have played a material (not necessarily decisive) part in the Adjudicator’s reasoning.
7. The more recent case of ML (Nigeria) [2013] EWCA Civ 844 involved substantial errors in the recollection and record of the facts that were advanced in the case. It was held that, even though there were sound reasons for rejecting the appeal, a series of material factual errors can constitute an error of law. It is trite in not only the field of judicial review but also statutory appeals and appeals by way of case stated that factual errors, if they are significant to the conclusion, can constitute errors of law. The essential question for the UT was whether this appellant had a fair hearing. As part of that fair hearing, the finders of fact must listen to and take into account conscientiously the arguments that are deployed in favour of a finding that the claimant is telling the truth as well as those arguments against.
8. It is said the finding in relation to the Appellant’s wife is wrong as she did not leave Zimbabwe for the UK and this has never been part of the Appellants case. It is claimed his wife returned home from refuge with relations in Zimbabwe, not from the UK. If this is the case, a finding that her return was demonstrative of a lack of any threat, as she returned from the UK to Zimbabwe, is said to be unsustainable and to have affected the overall assessment of the evidence.
9. This is not an appeal in which it has been established the Judge failed to consider the evidence with the required degree of care or misunderstood the evidence as a result. The finding recorded in paragraph 17 is one the Judge thought he was entitled to make on the evidence. This is clear from a reading of paragraph 15 of the Appellant’s witness statement dated 21st May 2013, to be found at section D of the Respondents bundle. In that the Appellant wrote:
15. I travelled to the UK without any problems at the airport. After a few weeks my wife decided to return home. She was uncomfortable living with relatives and we all thought the situation in Marondera would have calmed down. I felt it was safe for them to return.
10. In paragraph 14 the Appellant refers to his siblings in the UK encouraging him to come for a visit and it is plausible that the reference to relatives in the mind of the Judge assessing the evidence was to the UK based relatives. I was not referred to any evidence provided to the Judge stating the Appellant’s wife had in fact remained in Zimbabwe. I find the Appellant (or his advisors) responsible for the mistake as there is a lack of clarity and ambiguity in the evidence.
11. I find there is no evidence the Appellant did not have a fair hearing but I have gone on to consider whether the fact the wife remained in Zimbabwe is material to the decision.
12. The core of the claim is based upon a number of incidents. In 2004 the Appellant claims to have been “roughed up” and his friend killed by Zanu PF thugs, he was beaten in February 2008 when he refused to attend a Zanu-PF rally, and on 13th October 2011 there was a visit from two CIO officers who sought to persuade him to organise a protest by the combined resident associations during a visit by Prime Minister Tsvangirai. After discussing the matter with the Association Chairman they declined, which he was told was taken as a declaration of war. As a result the family went to Harare for safety before the Appellant came to the UK. He claims his wife advised him not to return during a telephone call after she had returned to their home. He fears for his safety as a result of these incidents and claims his wife has been roughed up, raped, and has disappeared.
13. In paragraph 12 of the determination the Judge notes a material discrepancy in the evidence. In paragraph 6 of his witness statement the Appellant had claimed he was a lifelong MDC supported yet in reply to a question put in cross-examination that he used to be a Zanu-PF supported and that he was from a Zanu-PF family. The Judge also noted the claim to have been able to run a successful security business in the same paragraph.
14. It was found the account of the 2004 events was not accepted although even if it was credible it was so far from 2008 that no continuing threat has been established. It was a one off incident of ‘thugery’. It was found in paragraph 14 that the fact the alleged incidents occurred in 2004, 2008 and 2010 meant they were too distant from the 2011 departure to substantiate a claim for personal adverse interest. It was also noted that the Appellant was from a Zanu PF family, had a thriving business, and that it was not plausible in a Zanu-PF dominated area that such a business could have thrived in the hands of a proprietor seen to be a supporter of the opposition [15].
15. It can be seen that none of the above findings are dependant upon the presence of the wife in the UK and her having returned home. The finding in paragraph 22 that the fact he had resources indicates he was a supporter of the regime is challenged but on grounds of alleged “error and prejudice to his findings”. I find no merit in the claim as the Judge is not stating that no person who is an MDC supported can be well off but that it is not likely a person from a Zanu-PF family, living in a Zanu-PF area, dependant upon extensive connections and goodwill, will be able to succeed if he was a supporter of the MDC. This finding has not been shown to be irrational or perverse as the country information for the relevant time refers to violence against the person and property of those perceived to support the opposition.
16. The allegation that paragraph 22 is seemingly contradictory to the objective evidence” is noted but does not prove a material error. If an individual is wanted there is a real risk of being detained trying to leave the country yet the Appellant was not.
17. In relation to his position as the secretary of the residents association it is likely to be the case in a Zanu-PF area that such a person will be a supporter of this party. In light of the rejection of the claim to support the MDC and other related findings the conclusion no risk arises from this position is sustainable. The evidence fails to substantiate the claim such an organisation would refuse to do as the CIO requested, in light of the political/practical reality of the consequences of such a refusal. There is insufficient evidence to show his involvement in the association means he is actually or will be perceived as being against the ruling party.
18. I also note the fact that although the Appellant’s wife remained in Zimbabwe she chose to return to her home area. The Appellant records they thought it would be safe to do so which supports the Judges findings that the fact she did return to the family home was illustrative of the lack of a credible risk (whether from the UK or elsewhere in Zimbabwe). The fact the Appellant came to the UK but left his wife and other family in Zimbabwe is illustrative of there being no such risk to all family members. The Judge found the claimed rape and abduction of the wife did not occur which is a finding within the range of those available to him on the evidence considered as a whole.
19. Risk at the airport needed to be assessed in light of the case of HS and within Zimbabwe in light of CM which the Judge did. The findings the Appellant failed to prove he is entitled to a grant of status, set out in paragraphs 28 and 29 of the determination, have not been shown to be perverse, irrational, or contrary to the evidence. No legal error material to the decision to dismiss the appeal has been proved.
20. There is no material error of law in the First-tier Tribunal Judge’s decision. The determination shall stand.
21. 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).

Upper Tribunal Judge Hanson

Dated the 18th December 2013