Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/08170/2014

THE IMMIGRATION ACTS

Heard at Newport
Decision and Reasons Promulgated
on 6 October 2016
On 12 October 2016

Before

UPPER TRIBUNAL JUDGE HANSON

Between

MUNYARADZI CHIUNYE
(Anonymity direction not made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:

For the Appellant: Mr Paxton instructed by Duncan Lewis & Co Solicitors.
For the Respondent: Mr I Richards Senior Home Office Presenting Officer.

DECISION AND REASONS

1. By a decision dated 3 August 2016 Deputy Upper Tribunal Judge J F W Phillips set aside the determination of First-tier Tribunal Judge Foudy in which Mr Chinuye's appeal against the respondent's decision to refuse asylum and to set removal directions was dismissed.
2. The key passages of the Deputy Judge's decision are [11-14] which are in the following terms:
11. In making this finding it is clear that the Judge has had no regard to the Appellant's MDC activity and considered whether this of itself would cause him to face persecution upon return to his home area. The Judge had failed to have regard to CM (EM Country Guidance: Disclosure) Zimbabwe CG [2013] UKUT 00059 (IAC) and indeed has failed to consider risk on return at all. This is a material error of law and on this basis the decision must be set aside. In setting aside, the decision I see no reason to interfere with the credibility findings made and as such the resumed hearing will, in respect of the protection appeal, be confined to the issue of risk on return bearing in mind the Appellant's MDC activities up until the time he left Zimbabwe, the activities of his father up until his death taking into account the Appellant's home area and, if risk is present in his home area the reasonableness of relocation.
12. So far as Article 8 is concerned the First-tier Tribunal Judge made findings as to the genuineness and length of the Appellant's relationship with his then girlfriend. I give permission for the Appellant to adduce evidence of the up to date situation in this respect at the resumed hearing. I understand that this evidence will show that the Appellant and his girlfriend have married and are starting a family.

Conclusion

13. The decision of the First-tier Tribunal involved the making of an error of law for the reasons set out above.
14. I set aside the decision of the First-tier Tribunal but in doing so preserve the credulity findings made by the First-tier Tribunal. The decision will be remade by the Upper Tribunal and the resumed hearing will be confined to the issues of risk on return taking into account the possibility and reasonableness of internal relocation if relevant and Article 8 ECHR.

3. A judicial transfer order has been made, dated 13 September 2016, as a result of Deputy Judge Philips being unavailable to hear the substantive appeal.

Discussion

The protection claim

4. The core findings that are preserved from the decision of the First-tier Tribunal are summarised in [10] of the decision of Deputy Judge Philips in the following terms:

10. The Appellant is a citizen of Zimbabwe from Central Matabeleland. It is accepted that both he and his father were MDC activists in the Appellant's case up until the time he left Zimbabwe in 2005 and in his father's case up until his death in 2007. The First-tier Tribunal Judge found that the Appellant's MDC involvement ceased when he left Zimbabwe and that he had not been involved in sur place activities. On this basis the Judge dismissed his asylum appeal. In dismissing the appeal, the Judge dealt with the Appellant's account of his communication with his cousin, Saviour and found this and the appellant's account of making Facebook postings to be incredible. These are findings that the Judge was entitled to make?..

5. The profile of the appellant on return is therefore as a failed asylum seeker who was previously active in the MDC but who has not engage in MDC activities since his arrival in the UK, which he entered on 22 March 2005 with valid leave as a student. The appellant had valid leave to remain until 31 March 2013 and has overstayed thereafter.
6. The relevant country guidance case remains CM (EM country guidance; disclosure) Zimbabwe CG [2013] UKUT 00059(IAC) in which the Tribunal held that the evidence does not show that, as a general matter, the return of a failed asylum seeker from the United Kingdom, having no significant MDC profile, would result in that person facing a real risk of having to demonstrate loyalty to the ZANU-PF. In general, a returnee from the United Kingdom to rural Matabeleland North or Matabeleland South is highly unlikely to face significant difficulty from ZANU-PF elements, including the security forces, even if the returnee is a MDC member or supporter. A person may, however, be able to show that his or her village or area is one that, unusually, is under the sway of a ZANU-PF chief, or the like. 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.
7. The appellant has not been found to have a significant MDC profile or to be a person likely to engage in political activities likely to attract the adverse attention of Zanu-PF on return.
8. In relation to risk on return at the airport, the Tribunal in HS (returning asylum seekers) Zimbabwe CG [2007] UKAIT 00094 found that the process of screening returning passengers is an intelligence led process and that 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. In paragraphs 264 and 266 the tribunal said: "The CIO has taken over responsibility for the operation of immigration control at Harare airport and immigration officers are being replaced by CIO officers. We accept also that one of the purposes of the CIO in monitoring arrivals at the airport is to identify those who are thought to be, for whatever reason, enemies of the regime. The aim is to detect those of interest because of an adverse military or criminal profile. 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. But anyone perceived to be a threat to or a critic of the regime will attract interest also ? We have set out the evidence that indicates in whom the CIO has an interest. This will be those in respect of whom there is any reason to suspect an adverse political, criminal or military profile of the type identified in AA(2). In addition, those perceived to be associated with what have come to be identified as civil society organisations may attract adverse interest as critics of the regime" (and see paragraph 282). 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". In CM (EM country guidance; disclosure) Zimbabwe CG [2013] UKUT 00059(IAC) the Tribunal held that the fresh evidence regarding the position at the point of return does not indicate any increase in risk since the Country Guidance was given in HS. On the contrary, the available evidence as to the treatment of those who have been returned to Harare Airport since 2007 and the absence of any reliable evidence of risk there means that there is no justification for extending the scope of who might be regarded by the CIO as an MDC activist.
9. The appellant is not an MDC activist and it has not been established that he will be perceived to be politically active in support of the opposition by the CIO when checking the passenger manifest on return such as to create a real risk of ill treatment. The appellant left Zimbabwe lawfully with a valid student visa and remained in the UK for a number of years in this capacity. It is known by the authorities that nationals of Zimbabwe travel abroad for work and education and this in its self has not been shown to create a real risk for the appellant on return.
10. Mr Richards submitted that the appellant's last 'home area' is Harare according to his screening interview and it has not been established that he will be required to travel to Central Matabeleland. There is also a viable internal relocation option in Zimbabwe to Bulawayo and it has not been made out that it is unreasonable to expect the appellant to make use of the same, if required. The appellant is a well-educated man and it has not been made out that he will be unable to re-establish himself in Zimbabwe or lack any support on return.
11. I find the appellant has failed to establish to the lower standard required in an appeal of this nature that he is entitled to be recognised as a refugee or a person entitled to any other form of international protection.

The human rights claim

12. The human rights claim is based upon a private life in the United Kingdom formed since his entry as a student, his family life with his wife Nell Abramczuk, a British citizen, and their child. The issue in relation to the child is that he or she has not yet been born although the due date is the end of October 2016.
13. It was conceded by Mr Paxton that the appellant is unable to succeed under the Immigration Rules. This is correct as the required period of residence in the United Kingdom is not enough to enable him to succeed under paragraph 276ADE. The appellant cannot meet the requirements of E-LTRP2.2 as he is in the United Kingdom in breach of immigration laws.
14. The submission that the partner could not return to Zimbabwe with the appellant as she is white has not been made out. There is a white population in Zimbabwe and a news article in the Telegraph, dated 11 October 2016, reported that consideration was being given to leasing back farms to a number of named white farmers.
15. In relation to Article 8 ECHR outside the Rules, Mr Paxton was asked what aspects of the case warrant consideration on this basis. This is a relevant issue as in SS(Congo) and Others [2015] EWCA Civ 387 Lord Justice Richards said at paragraph 33 "In our judgment, even though a test of exceptionality does not apply in every case falling within the scope of Appendix FM, it is accurate to say that the general position outside the sorts of special contexts referred to above is that compelling circumstances would need to be identified to support a claim for grant of LTR outside the new Rules in Appendix FM. In our view, that is a formulation which is not as strict as a test of exceptionality or a requirement of "very compelling reasons" (as referred to in MF (Nigeria) in the context of the Rules applicable to foreign criminals), but which gives appropriate weight to the focused consideration of public interest factors as finds expression in the Secretary of State's formulation of the new Rules in Appendix FM. It also reflects the formulation in Nagre at para. [29], which has been tested and has survived scrutiny in this court: see, e.g., Haleemudeen at [44], per Beatson LJ". It was submitted that the element that warranted consideration outside the Rule is the fact the appellant's wife is pregnant. It is accepted that the pregnancy forms part of the appellant's wife's private life as the child is, in effect, part of her until birth. Article 1 ECHR, however, makes it clear that the scope of the Convention is applicable to those who have been born and not 'en ventra sa mere'. A child is not an independent legal person or entity in UK domestic law either until born. The facts do not shown the pregnancy is in itself a compelling circumstance.
16. It has not been shown the direction for the appellants removal interferes with the progress of the pregnancy or will result in a disproportionate impact upon the parties. The respondent is not seeking to remove the appellant's wife, which she cannot do as she is a British citizen, and it has not been made out that family life between the appellant and his wife cannot be continued in Zimbabwe.
17. The introduction of section 117 of the Nationality, Immigration and Asylum Act 2002 also requires a balancing exercise to be conducted when considering Article 8 issues. In this regard the section provides:

"PART 5A

ARTICLE 8 OF THE ECHR: PUBLIC INTEREST CONSIDERATIONS

117A Application of this Part

(1) This Part applies where a court or tribunal is required to determine whether a decision made under the Immigration Acts-

(a) breaches a person's right to respect for private and family life under Article 8, and

(b) as a result would be unlawful under section 6 of the Human Rights Act 1998.

(2) In considering the public interest question, the court or tribunal must (in particular) have regard-

(a) in all cases, to the considerations listed in section 117B, and

(b) in cases concerning the deportation of foreign criminals, to the considerations listed in section 117C.

(3) In subsection (2), "the public interest question" means the question of whether an interference with a person's right to respect for private and family life is justified under Article 8(2).

117B Article8: public interest considerations applicable in all cases:

(1) The maintenance of effective immigration controls is in the public interest.

(2) It is in the public interest, and in particular in the interests of the economic well-being of the United Kingdom, that persons who seek to enter or remain in the United Kingdom are able to speak English, because persons who can speak English-

(a) are less of a burden on taxpayers, and

(b) are better able to integrate into society.

(3) It is in the public interest, and in particular in the interests of the economic well-being of the United Kingdom, that persons who seek to enter or remain in the United Kingdom are financially independent, because such persons-

(a) are not a burden on taxpayers, and (b) are better able to integrate into society.

(4) Little weight should be given to- (a) a private life, or

(b) a relationship formed with a qualifying partner, that is established by a person at a time when the person is in the United Kingdom unlawfully.

(5) Little weight should be given to a private life established by a person at a time when the person's immigration status is precarious.

(6) In the case of a person who is not liable to deportation, the public interest does not require the person's removal where-

(a) the person has a genuine and subsisting parental relationship with a qualifying child, and

(b) it would not be reasonable to expect the child to leave the United Kingdom.

18. It is not disputed that the appellant speaks English and may in the future, if he succeeds with his professional qualifications and is able to secure employment, be self-sufficient.
19. The appellant's leave expired on 31 March 2013. In her statement dated 6 July 2016 the appellant's wife confirms that they met in July 2013. All their time as colleges, friends, and later as partners and spouses has been formed at a time the appellant has had no lawful right to remain in the UK. His status as a student was precarious prior to this - see AM (S 117B) Malawi [2015] UKUT 260 (IAC). In relation to the weight to be provided to both family and private formed at such a time, see Rajendran (s117B - family life) [2016] UKUT 138 (IAC) in which it was held that (i) "precariousness" is a criterion of relevance to family life as well as private life cases is an established part of Article 8 jurisprudence: see e.g. R (Nagre) v SSHD [2013] EWHC 720 (Admin) and Jeunesse v Netherlands, app.no.12738/10 (GC). (ii) The "little weight" provisions of s.117B(4)(a) and (5) of the Nationality, Immigration and Asylum Act 2002 are confined to " private life" established by a person at a time when their immigration status is unlawful or precarious. However, this does not mean that when answering the "public interest question" posed by s117A(2)-(3) a court or tribunal should disregard "precarious family life" criteria set out in established Article 8 jurisprudence. Given that ss.117A-D considerations are not exhaustive, in certain cases it may be an error of law for a court or tribunal to disregard relevant public interest considerations.
20. Article 8 does not give a person the right to choose where they wish to live. It is a provision designed to prevent unwarranted interference by a State with a protected right. The weight given to the elements relied upon is little and it has not been shown this is a case in which, on the facts, it has been made out that circumstances exist that warrant a finding that the decision to remove is not proportionate.
21. In relation to the appellant making an application to re-enter if removed, in R (on the application of Chen) v SSHD (Appendix FM - Chikwamba - temporary separation - proportionality) IJR [2015] UKUT 00189 (IAC) it was held that (i) Appendix FM does not include consideration of the question whether it would be disproportionate to expect an individual to return to his home country to make an entry clearance application to re-join family members in the U.K. There may be cases in which there are no insurmountable obstacles to family life being enjoyed outside the U.K. but where temporary separation to enable an individual to make an application for entry clearance may be disproportionate. In all cases, it will be for the individual to place before the Secretary of State evidence that such temporary separation will interfere disproportionately with protected rights.
22. On the facts appertaining at the date of this hearing the respondent has made out her case that the decision is proportionate.
23. When the appellant's living child is born that will represent a change in circumstances that may warrant a further application under the Rules if circumstances support the same. That is a matter upon which the appellant will be able to seek legal advice.

Decision

24. The First-tier Tribunal Judge has been found to have materially erred in law and that decision set aside. I remake the decision as follows. This appeal is dismissed.

Anonymity.

25. The First-tier Tribunal did not make an order pursuant to rule 45(4)(i) of the Asylum and Immigration Tribunal (Procedure) Rules 2005.

I make no such order pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008.

Signed??????????????????.
Upper Tribunal Judge Hanson

Dated the 11 October 2016