Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/03420/2012

THE IMMIGRATION ACTS

Heard at Field House
Determination Sent
On 20th November 2012

Before

UPPER TRIBUNAL JUDGE D E TAYLOR

Between

chipo susan mapurisa
Appellant

and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellant: Ms Nnamani of Counsel instructed by Howe & Company
For the Respondent: Ms F Saunders, Home Office Presenting Officer

DETERMINATION AND REASONS

1. This is the appellant’s appeal against the decision of Immigration Judge Youngerwood made following a hearing at Taylor House on 2nd May 2012.

Background
2. The appellant is a citizen of Zimbabwe born on 12th June 1984. She arrived in the UK on 18th April 2001 as a visitor and overstayed. In 2011 she made an application under Article 8 of the ECHR which was rejected on 14th July 2011. She applied for asylum on 3rd March 2012.
3. The Immigration Judge stated that the issue of credibility was borderline but he was just about persuaded that the core account of the appellant’s family history in Zimbabwe was accurate.
4. It is the appellant’s case that her father was actively involved with the MDC from its formation until 2009 when he fled the country. He was attacked on two occasions in 2000 and 2008. The appellant also claimed that her family had been harassed on account of her father’s activities. The appellant herself became a member of the MDC in June 2011 at the south east London branch and attends regular meetings.
5. The judge recorded that even in relation to her father there had been long gaps on her account between the incidence of ill-treatment and that at interview and in her witness statement she had claimed that ZANU-PF had visited her family enquiring about her father but did not assert that any real ill-treatment was inflicted on her mother or brother. The appellant claimed in court that threats had been made to kill them but the judge rejected her evidence as an embellishment of her account. The judge found that the appellant’s failure to make any mention of her core history in 2011 was due to the fact that the appellant herself never believed subjectively that she was at any real risk of persecution or ill-treatment.
6. The judge applied the then country guidance case of EM & Others (returnees) [2011] UKUT 00098 and concluded that the appellant would not be at risk on return in her home area and even if she was, she could reasonably relocate.
7. The appellant sought permission to appeal on the grounds that an appeal against EM was allowed by consent in the Court of Appeal on 13th June 2012 and remitted for further hearing to the Upper Tribunal on the basis that it was arguable that the Secretary of State had failed to make proper disclosure to the Tribunal in EM and the Tribunal was in error in relying on anonymous evidence contained in the report of the Secretary of State’s Fact-finding Mission to Zimbabwe in August 2010.
8. Permission to appeal was granted for the reasons stated in the grounds on 30th May 2012 by First-tier Tribunal Judge Frankish.
9. At the hearing both representatives agreed that there was an error of law in this determination in that the judge had relied on the conclusions of a country guidance case which has been found to be flawed. Both Ms Saunders and Ms Nnamani agreed that the proper course would be for this case to be re-decided on the basis of the findings of fact reached by the First-tier Tribunal, which have not been subject to any challenge, in the light of the forthcoming country guidance case which is due to be promulgated by the Upper Tribunal imminently.
10. The decision of First-tier Tribunal Judge Youngerwood was set aside and the following directions were given.
(i) Both the respondent and the appellant are to file written submissions within 14 days of the promulgation of the forthcoming country guidance case on Zimbabwe setting out why it is considered that the appeal should be either allowed or dismissed on the basis of the findings of fact as set out by Immigration Judge Youngerwood. A decision will then be made on the basis of those submissions. If either party considers that an oral hearing is necessary they are to say so and to provide proper reasons.
11. Following the directions, the appellant served her written submissions, on 12th February 2013 and the respondent on 6th March 2013. The appellant sought permission to reply to the respondent’s submissions within ten days of their receipt. Permission was granted on 12th March 2013 and the parties told that if no further submissions were received the appeal would be determined without a hearing after ten days of the date of the directions. No further submissions were received.
The appellant’s case
12. The basis of the appellant’s claim is that she was born and lived in Mashonaland West where she lived with her parents and younger brother. Her father was involved with the MDC from its inception and was chairman for the MDC for the Chinhoyi branch between 2000 and 2002. He was attacked on two occasions in 2000 and 2008 and physically assaulted. The family moved home to avoid harassment and persecution from the ZANU-PF firstly within Chinhoyi and then to a village in Hurungwe where they remained for a year. During that period they were subjected to further harassment and the appellant’s father subsequently left Zimbabwe and fled to South Africa in 2008.
13. The appellant arrived in the UK on 18th April 2001 having been granted a visit visa and overstayed. On 8th March 2011 she made an application under Article 8 of the ECHR which was refused. A subsequent application for asylum was submitted on 18th January 2012 and refused on 24th March 2012. She had always supported the MDC but decided to join the South East London branch in June 2011 and began to support Zimbabwe vigils from January 2011. In May 2012 she became the MDC branch women’s secretary.
14. The appellant says that she has lived with her aunt and cousins in the UK with whom she has formed a significant bond.
Submissions
15. First-tier Tribunal Judge Youngerwood said that there would be no risk to the appellant in her home area since her mother and brother had lived in that community without significant difficulties which had stemmed from her father’s role in the MDC. In any event she could relocate to Bulawayo or Harare.
16. The appellant’s representatives make a number of submissions attacking the determination of the First-tier Judge, the thrust of which are that the appellant would be at risk even if she was not a genuine member of the MDC or if her activities were simply undertaken to bolster an asylum claim and the question which needs to be addressed is whether a political neutral would be forced to feign support for the regime in order to avoid persecution, in line with the principles in RT Zimbabwe v SSHD [2012] UKSC 38.
17. The appellant’s role within the MDC was not limited to having her name on the website as branch women’s secretary and she relies on the present country guidance case of CM (EM country guidance disclosure) Zimbabwe CG [2013] UKUT 00059 which held, at paragraph 215, that
“The position is, however, likely to be otherwise in the case of a person without ZANU-PF connections, returning from the United Kingdom after a significant absence to a rural area of Zimbabwe, other than Matabeleland North or Matabeleland South. Such a person may well find it difficult to avoid adverse attention, amounting to serious ill-treatment, from ZANU-PF authority figures and those they control. The adverse attention may well involve a requirement to demonstrate loyalty to ZANU-PF, with the prospect of serious harm in the event of failure. Persons who have shown themselves not to be favourably disposed to ZANU-PF are entitled to international protection, whether or not they could and would do whatever might be necessary to demonstrate such loyalty (RT (Zimbabwe)).”
18. The Tribunal is obliged to consider what risk would be faced by a person who will be obliged to pretend to support ZANU-PF in order to avoid persecution if his or her political neutrality is disclosed. The appellant’s father was a prominent MDC member which would demonstrate that she was not in any way aligned with the regime.
19. The appellant also relies on paragraph 189 of EM whose guidance regarding risk on return was not disturbed by the Tribunal decision in CM which held as follows:
“Although as a general matter the risk of persecution and other serious ill-treatment in Zimbabwe including the rural areas has significantly declined as at 28th January 2011 compared with the position under review in RN the evidence before us raises serious concerns as to the position of a Zimbabwe citizen without ZANU-PF connections returning from the UK after a significant absence to live in Mashonaland West, Mashonaland Central, Mashonaland East, Manicaland, Masvingo or Midlands Province. Such a person returning to a rural part of such a province where the chief or headman is likely to be an acolyte of ZANU-PF may well find it difficult to avoid adverse attention amounting to serious ill-treatment from ZANU-PF authority figures and those they control unless of course the Immigration Judge is entitled to conclude that that the returnee is likely to be associated with such elements… Apart from this category however we conclude that returnees to these areas would face a real risk of persecution because of a continuing risk of being required to demonstrate loyalty. In the light of the judgment of the Court of Appeal in RT Zimbabwe [2010] EWCA Civ 1285 we recognise it is no answer to a loyalty challenge that the returnees could be expected to mislead the enquiry as to where loyalties lay.”
20. The fact that the appellant’s mother and brother live in Chinhoyi and have not yet been physically harmed does not exclude the possibility that the appellant, whose circumstances are significantly different due to her length of absence from the area and her own activities for the MDC genuinely undertaken or not, would face persecutory treatment.
21. In relation to internal relocation, it would be unduly harsh and unreasonable to expect her to go to Bulwayo or Harare.
22. The appellant relies on CM which held
“A returnee to Harare will 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 he 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.
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.
The issue of what is a person’s home for the purposes of internal relocation is to be decided as a matter of fact and is not necessarily to be determined by reference to the place a person from Zimbabwe regards as his or her rural homeland. As a general matter it is unlikely that a person with a well-founded fear of persecution in a major urban centre such as Harare will have a viable relocation alternative to a rural area in the eastern provinces. Relocation to Matabeleland including Bulawayo may be negated by discrimination where the returnee is Shona.
Internal relocation from a rural area to Harare or (subject to what we have just said) Bulawayo is in general more realistic; but the socioeconomic circumstances in which persons are reasonably likely to find themselves will need to be considered, in order to determine whether it would be unreasonable or unduly harsh to expect them to relocate.”
23. It was highly likely that the appellant would find herself within a high density community if returned to Harare where she would be at risk. There was nothing in her history or financial circumstances to indicate that she could relocate within a low density area.
24. The Secretary of State also made written submissions and continues to rely on the reasons for refusal letters. The written submissions on behalf of the appellant were an attempt to reargue the case, an error only having been agreed on the basis of the reliance on EM. The Secretary of State does not accept that it is appropriate to consider the findings of fact made by Judge Youngerwood at this stage.
25. Judge Youngerwood gave reasons for not accepting that Appellant would come to the attention of the regime on the basis of her activities and for finding that the regime would not consider her to be a genuine enemy as it would be apparent that her activities were for the sole basis of enabling her to remain in the UK. Those findings have not been deemed to be vitiated by any error of law and still stand.
26. The respondent also relies on the paragraphs in the country guidance case in EM as modified with respect to internal relocation. It was accepted that she comes from Chinhoyi but her family members have, she says, been actively associated with the MDC and have not come to any adverse attention. In any event, since she does not have a significant MDC profile, she would not be at risk even in a high density area of Harare.
27. Finally it was not accepted that on return the appellant would need to feign any association with ZANU-PF.
Findings and conclusions
28. The submissions attacking the First-tier Judge’s determination are misconceived since it was accepted at the hearing on 20th November that the sole issue upon which permission to appeal was sought and permission granted was that the judge had erred in law in relying on a flawed country guidance case.
29. Accordingly the findings of the judge stand as the basis for this decision. The judge accepted that, although borderline, that the core account of the appellant’s family history in Zimbabwe was accurate. However her failure to make any mention of it in 2011 was due to the fact that the appellant herself never subjectively believed that she was at any real risk of persecution or ill-treatment. The application for asylum followed the rejection of the claim which she had made for leave to remain in the UK on human rights grounds. It was only when she failed in that application that she then decided to make an asylum claim, based in significant part on activities undertaken in the UK which she did in order to bolster any future claim for status.
30. The judge’s findings that she had undertaken the activities claimed but that she was not a genuine and committed MDC supporter who would undertake MDC activities in Zimbabwe stand.
31. The judge also found that the appellant’s activities would not be the subject of active monitoring by the CIO and would not be known on return to Harare Airport. Her activities on any basis were relatively low key even though she had been named in one of the MDC websites. The CIO would be aware that the appellant had been in the UK for a considerable number of years before she undertook any political activity and it was apparent that her very late claim to asylum and late activities from 2011 were designed to provide her with the basis to remain here and that she was not a truly committed MDC member.
32. Even if her father’s profile was known to the CIO, his activities had ceased from the perspective of the authorities from 2008. The appellant’s mother and brother have not been subjected to any persecution or ill-treatment notwithstanding his former activities for the MDC in their home area.
33. Judge Youngerwood said
“I would add that I would expect the appellant, were she to be questioned about her sur place activities to admit to the truth as I have found it, namely that these were not sincere but designed merely to support her claim for remaining in the UK. In this respect there is all the difference in the world between a truly committed political activist who will either reveal his political beliefs or will be too afraid to reveal his political beliefs because of the fear of persecution or ill-treatment and the position of an appellant who has decided to bolster a claim for asylum by pretending to be committed to a political cause.”
34. Accordingly on the basis of the unchallenged findings there is no risk to the appellant on return in respect of her activities in the UK nor those of her father in her home area. Furthermore, even if there was, she could plainly relocate to Harare where she would face no significant difficulties in either a low density or a high density area. There is absolutely no evidence that she would be reasonably likely to engage in activities so as to attract the adverse attention of ZANU-PF because she has not done so in the past save for the purpose of trying to remain in the UK.
35. With respect to the RT Zimbabwe point, the Tribunal in CM held that the evidence does not show that, as a general matter, 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 save for persons without ZANU-PF connections returning from the UK after a significant absence to a rural area of Zimbabwe.
36. This appellant has been away from Zimbabwe for a very lengthy period of time and she does not have significant ZANU-PF connections since her father was active for the MDC. Her mother and brother have not been subject to any difficulty but the appellant has the additional factor of having been away for a lengthy period of time and it therefore may be that local ZANU-PF figures would require her to demonstrate loyalty. The principal in RT Zimbabwe protects her from having to feign a loyalty that she does not believe in order to avoid persecution, holding that there is no scope for an application of the core/marginal distinction which the Secretary of State sought to rely upon in that case. The situation in Zimbabwe was not that the right to hold political beliefs was generally accepted, subject only to some arguably preferable or minor restrictions. It is that anyone who is not thought to be a supporter of the regime is treated harshly which is persecution. The HJ Iran principle applies to applicants who claim asylum on the grounds of a fear of persecution on the grounds of a lack of political belief regardless of how important their lack of belief is to them.
37. It follows therefore that the appellant may find herself at risk in her home area from local figures in her home area if required to demonstrate loyalty, but she has a viable relocation alternative, such as Harare or Bulaweyo.
Decision
The decision of the judge has been set aside. It is remade as follows. The appellant’s appeal against the decision of the Secretary of State to refuse her asylum is dismissed.

Signed Date

Upper Tribunal Judge Taylor