Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: AA/08061/2010
AA/08066/2010

THE IMMIGRATION ACTS

Heard at : Sheldon Court
Date sent:
On : 13th June 2013
On : 21st June 2013

Before

Upper Tribunal Judge McKee

Between

aubery mUdiwa & mercy chapepa

Appellants
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellants: Mr James Howard of Fountain Solicitors
For the Respondent: Mr Neville Smart, Senior Presenting Officer

DETERMINATION AND REASONS

1. These two linked appeals have a convoluted procedural history. Mr Mudiwa (the spelling ‘Madiwa’ appears to be a mistake) came to this country on a visit visa in November 1999, having taught at a primary school in rural Manicaland for one year. He obtained leave to remain as a student until the end on June 2001, and thereafter he overstayed until in September 2007 he claimed asylum. The claim was refused, but the subsequent appeal was allowed on the sole basis that the Secretary of State had not considered the factors listed at paragraph 395C of the Immigration Rules before deciding to remove Mr Mudiwa as an overstayer. Another ‘immigration decision’ was therefore taken, and this time the appeal came before Immigration Judge Meah on 28th July 2008. The appellant’s story of having been in trouble with the authorities before leaving Zimbabwe was not believed, while his activities with the Walsall branch of the MDC were thought to be too low-level to bring him to the adverse attention of ZANUU-PF on his return. Nor did Judge Meah think that the appellant’s stint as a teacher in the academic year 1998-1999 would get him into trouble, even if his occupation was marked on his Zimbabwean passport.

2. Mr Mudiwa became ‘appeal rights exhausted’ by 21st August 2008, but in May 2009 Bake & Co. made further representations on his behalf, based on the country guidance in RN (returnees) Zimbabwe CG [2008] UKAIT 83, which had found that “the fact of being a teacher, or having been a teacher in the past, again is capable of raising an enhanced risk.” The Case Resolution Directorate was also informed that Mr Mudiwa had undergone a customary marriage with a lady of Malawian origin, Mercy Chapepa, who had borne him a daughter on 27th March 2009. The solicitors asked that the daughter (though not her mother) be registered as dependent on their client’s asylum claim.

3. These further submissions were accepted as a fresh claim for asylum, but the claim was rejected in a letter dated 19th May 2010, and another decision was taken to remove Mr Mudiwa. Two days later, a decision was taken to refuse the asylum claim which Mercy Chapepa had made in her own right. Ms Chapepa had travelled to the United Kingdom from Zimbabwe in December 2001, having been issued with a Malawian passport earlier that year. She obtained another Malawian passport while in this country, valid until October 2012. After her initial leave to enter as a visitor, Ms Chapepa obtained grants of leave to remain as a student until 2009, but her leave had run out by the time she claim asylum on 1st April 2010. The claim was based upon assaults by ZANU-PF militants upon her and her brothers in 2001, because of their support for the MDC. But she had no involvement with the MDC in this country.

4. The appeals by Mr Mudiwa and Ms Chapepa against the decisions to remove them came before the First-tier Tribunal on 7th July 2010. Judge Thomas considered the country guidance in RN, with its enhanced risk for teachers, but took Judge Meah’s determination as her starting point, in accordance with Devaseelan. She found Mr Mudiwa’s continuing activity with the MDC in Walsall to be no more high-profile than it had been in 2008, when the earlier appeal came before the Asylum & Immigration Tribunal. There was no real risk that this activity would get him into trouble on return to Zimbabwe, and he had not suffered any persecution when he was a teacher in Zimbabwe for one year. As for Ms Chapepa, Judge Thomas did not find her account of what happened to her in Zimbabwe credible, and did not think that she would attract any adverse attention on return there. Both appellants, she concluded, would be able to demonstrate loyalty to ZANU-PF if required to do so.

5. Permission to appeal to the Upper Tribunal was sought on behalf of both Mr Mudiwa and Ms Chapepa, and was refused in both cases by Senior Immigration Judge Ward, sitting as a First-tier judge. On renewal, however, Mr Mudiwa’s application came before SIJ Gleeson, who granted permission in September 2010, on the basis that “the appellant’s brief foray into teaching, which ended in 1999, … was not properly considered”, whereas Ms Chapepa’s application came before SIJ Peter Lane, who refused it. Something must have gone wrong administratively, since both applications should have been put before the same judge. There were further procedural problems and delays, as Designated Judge Bowen presided over hearings in December 2011 and November 2012, and Blakemores, the firm which had represented both appellants, went out of business. Eventually, Principal Resident Judge Southern directed that Ms Chapepa should be given permission to appeal to the Upper Tribunal along with her husband, and so the two linked appeals have come at last before me.

6. My first task is to decide whether Judge Thomas made a material error of law in dismissing either of the appeals. I have been greatly assisted in this task by the oral submissions of Mr Howard and Mr Smart, to which I shall refer in giving my decision, which I reserved at the end of the hearing.

7. Although three years have elapsed since these appeals were heard by Judge Thomas, I must confine myself to the circumstances obtaining at that time. Mr Howard’s strongest point is the warning in the head note of RN, repeated in the body of the determination at paragraph 261, that teachers were an ‘enhanced risk’ category. “There is no credible evidence”, says Judge Thomas at paragraph 44 of her determination, “that he [Mr Mudiwa] or his family were involved in politics in Zimbabwe or that he suffered persecution there on account of being a teacher for one year.” The judge does not address in terms the question whether Mr Mudiwa’s one-year stint at a rural primary school some eleven years before the hearing would cause him to be persecuted in the future. But realistically, his career in teaching was so short, and took place so long ago, that I cannot find this omission to be a material error, which could have made a difference to the outcome of the appeal. As the head note in RN puts it, “having been a teacher in the past is capable of raising an enhanced risk”, but that is not the same as saying that everyone who has ever been a teacher in Zimbabwe, no matter how long ago and no matter for how short a time, is at risk on return. Mr Mudiwa’s circumstances were clearly not such as to put him at real risk for having been a teacher. Mr Howard contends that his client’s occupation is given on his passport as ‘teacher’, which could get him into trouble with the CIO at Harare Airport. But the passport on which Mr Mudiwa travelled to the United Kingdom in 1999 will almost certainly have expired before his appeal was heard by Judge Thomas. He would need a new passport or travel document in order to return to Zimbabwe.

8. The ability of either appellant to demonstrate loyalty to ZANU-PF has not been an issue before me, and indeed the first head note to RN makes clear that a bare assertion that an appellant would be unable to do so “will not suffice, especially in the case of an appellant who has been found not credible in his account of experiences in Zimbabwe.” Neither appellant in the instant case has been found credible in this respect.

9. Mr Howard draws attention to the fact that Mr Mudiwa’s home area is a rural part of Manicaland, where support is split between the MDC and ZANU-PF. Judge Thomas was wrong, he contends, to suppose that because some people there support the MDC, his client will not be at risk from ZANU-PF. But as Mr Smart counters, his wife lived in the Mbare district of Harare, where support for the MDC is much stronger. The family would not be at risk there. In any event, it was Judge Thomas’ finding that neither appellant had a real commitment to the MDC, such as to land them in trouble with ZANU-PF supporters.

10. As a citizen of Malawi, Ms Chapepa cannot avail herself of the Refugee Convention in relation to Zimbabwe. Mr Howard takes issue with Judge Thomas’ supposition that Mr Mudiwa would be able to go to Malawi with his wife, but in any event the judge also found that Ms Chapepa would not be at risk in Zimbabwe, and that finding has not been seriously challenged. Judge Thomas’ optimistic expectation that the family would be able to settle in Malawi may or may not be right, but if the couple can return to Zimbabwe, the issue falls away.

11. Finally, Mr Howard submits that Judge Thomas did not consider the ‘section 55 duty’ in relation to the couple’s daughter, Pamela. All she said was that “their daughter is young enough to adapt to life elsewhere with her parents.” But as Mr Smart points out, Pamela was only 15 months old at the date of the hearing. For a child of that age, it is well settled that her best interests lie in living with her parents, in whichever country her parents happen to be. As an infant, she could not have formed ties with the United Kingdom which it would be a breach of her human rights to sever.

12. The upshot is that I do not find the First-tier Tribunal to have erred in law. Had I come to the opposite view, so that the decision on the appeals would have needed to be re-made on the basis of current circumstances, the outcome could hardly have been any different. The couple now have an 8-month old baby boy as well as a daughter who is now 4, but the recent country guidance cases of CM [2013] UKUT 59 (IAC) and NN [2013] UKUT 198 (IAC) would make their appeals much harder to win.

DECISION

The appeals are dismissed.

Richard McKee
Judge of the Upper Tribunal
20th June 2013