Tribunal decisions

The decision

IAC-AH-KEW-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/05133/2015

THE IMMIGRATION ACTS

Heard at City Centre Tower Birmingham
Decision & Reasons Promulgated
On 29th September 2016
On 2nd November 2016

Before

DEPUTY upper tribunal JUDGE RENTON

Between

D A M
(ANONYMITY DIRECTION MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms J Rooney of Khirri Solicitors
For the Respondent: Mrs Aboni, Senior Home Office Presenting Officer

DECISION AND REASONS
Introduction
1. The Appellant is a female citizen of Zimbabwe born on 25th October 1955. She last arrived in the UK on 30th May 2010 when she was given leave to enter as a family visitor until 25th September 2010. The Appellant overstayed, and applied for asylum on 13th November 2012. That application was refused for the reasons given in the Respondent's letter of 6th March 2015. The Appellant appealed, and her appeal was heard by First-tier Tribunal Judge Shergill (the Judge) sitting at Birmingham on 4th November 2015. He decided to allow the appeal on asylum grounds for the reasons given in his Decision dated 17th November 2015. The Respondent sought leave to appeal that Decision, and on 17th December 2015 such permission was granted.
Error of Law
2. I must first decide if the decision of the Judge contained an error on a point of law so that it should be set aside.
3. The Appellant claimed to fear persecution on return to Zimbabwe as a lesbian. The Judge allowed the appeal because he found the Appellant to be entirely credible. He was satisfied that the Appellant had a relative resident in Zimbabwe named D who was a senior member of the police and a Justice of the Peace. He was also related to and a member of the same clan as President Mugabe. The Judge found that D would learn of the Appellant's return to Zimbabwe, and that the State would not protect the Appellant from him. Further, it would not be safe for the Appellant to relocate elsewhere in Zimbabwe, and in particular that it would not be reasonable to expect her to relocate to Bulawayo.
4. At the hearing, Mrs Aboni argued that the Judge had erred in law in coming to this conclusion. In considering whether it was safe for the Appellant to return to Zimbabwe, and in particular whether she would be safe in any part of that country, the Judge had failed to take into account the decision in the Country Guidance case of LZ (Homosexuals) Zimbabwe CG [2011] UKUT 487 (IAC). Further, the Judge had failed to give sufficient reasons for his decision. In particular, the Judge had failed to engage with the evidence that the Appellant had had no contact with D since 2008; that she had experienced no problems in the two years prior to leaving Zimbabwe; and that she had been able to leave Zimbabwe unhindered. The Judge's finding that D would be able to discover the Appellant's whereabouts in Zimbabwe was speculative and unsupported by the objective evidence. The Judge had failed to take into account the fact that the Appellant's family in the UK would assist her financially if the Appellant were to return to Zimbabwe and relocate there.
5. Finally, Mrs Aboni argued that the Judge had failed to consider the issue of relocation properly. LZ indicated that there was no risk to homosexuals throughout Zimbabwe, and that there were areas such as Bulawayo where there was greater tolerance of lesbians.
6. In response Ms Rooney submitted that there were no such errors of law. The decision in LZ had been referred to at the original hearing, and the Judge's decision was in accordance with paragraph 116 thereof. The Judge had considered the personal circumstances of the Appellant extensively between paragraphs 25 and 40 of the Decision. He had been right to take into account the position of D in Zimbabwe.
7. I find no error of law in the decision of the Judge which I therefore do not set aside. It is regrettable that the Judge did not specifically refer to the Country Guidance decision of LZ particularly as it is so relevant to the issues before him, but the Judge did write at paragraph 38 of the Decision that he had taken into account "all of the case law" and therefore he may well have considered the decision in LZ. In any event, his failure to refer to LZ is not a material error of law because as Ms Rooney argued, his decision is in accordance with it. It is true that in LZ it was found that in Zimbabwe lesbianism is not criminalised, and that there is no general risk to gays or lesbians. However, the decision goes on to say that "Personal circumstances place some gays and lesbians at risk." It is apparent from the Decision that it was on this basis that the Judge allowed the appeal. The Judge dealt with the issue of risk on return at paragraphs 25 to 32 inclusive of the Decision and found that owing to the Appellant's relationship with D, and his position in Zimbabwe, that D would learn of the Appellant's return to Zimbabwe and persecute her. In reaching that conclusion, the Judge was aware of the evidence of the Appellant's history in Zimbabwe before coming to the UK, and any financial assistance the Appellant might receive from the UK should she return to Zimbabwe.
8. In my view the Judge considered the issue of relocation adequately at paragraphs 33 to 38 of the Decision. There he explains his decision that it would be unreasonable by way of being unduly harsh to expect the Appellant to relocate in Zimbabwe, particularly to Bulawayo which was referred to in LZ as being more tolerant. The decision of the Judge in this respect is explained to my satisfaction.
9. I therefore find no error of law in the decision of the Judge, and as a consequence I do not set aside that decision.
Notice of Decision
The making of the decision of the First-tier Tribunal did not involve the making of an error on a point of law.
I do not set aside that decision.
The appeal to the Upper Tribunal is dismissed.
Anonymity
The First-tier Tribunal made an order for anonymity which I continue for the reasons given by the First-tier Tribunal.
Direction Regarding Anonymity - Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008
Unless and until a Tribunal or court directs otherwise, the Appellant is granted anonymity. No report of these proceedings shall directly or indirectly identify him or any member of their family. This direction applies both to the Appellant and to the Respondent. Failure to comply with this direction could lead to contempt of court proceedings.

Signed Date

Deputy Upper Tribunal Judge Renton