Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/10179/2012

THE IMMIGRATION ACTS

Heard at North Shields Upper Tribunal
Determination Sent
On 14 May 2013

Before

UPPER TRIBUNAL JUDGE CLIVE LANE

Between

Lewis Tapera Matanhike
Appellant

and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:

For the Appellant: Mr Tettey, instructed by Switalskis, solicitors
For the Respondent: Mr Johnson, a Senior Home Office Presenting Officer

DETERMINATION AND REASONS

1. The appellant, Lewis Tapera Matanhike was born on 23 November 1970 and is a male citizen of Zimbabwe. On 24 October 2012, a decision was made to refuse to grant the appellant asylum and to remove him as an illegal entrant from the United Kingdom by way of directions under paragraphs 8-10 of Schedule 2 of the Immigration Act 1971. The appellant appealed against that decision to the First-tier Tribunal which, in a determination promulgated on 19 December 2012, dismissed the appeal. The appellant now appeals, with permission, to the Upper Tribunal.
2. Granting permission, Judge Barton wrote:
“The application before me was lodged on behalf of the appellant wherein issue has been taken with the determination. The grounds make a number of assertions, but the most significant are concerned with the judge having based his negative assessment of risk on return largely upon the Tribunal’s former country guidance case of EM and Others (Returnees) Zimbabwe CG [2011] UKUT 98 (IAC) but without at any point taking cognizance of the quashing of that determination by the Court of Appeal on 13 June 2012.”
3. At [30], Judge Saffer refers to EM and in five sub-paragraphs seeks to summarise that the country guidance contained in that determination. He does not refer to the quashing of the decision by the Court of Appeal. His failure to indicate that he was aware that EM and Others (Returnees) Zimbabwe CG [2011] UKUT 98 (IAC) had been quashed by the Court of Appeal and his apparent reliance on the Upper Tribunal determination as valid country guidance constitutes an error of law. However, by the time this appeal has reached the Upper Tribunal, new country guidance has been issued by the Upper Tribunal in CM (EM country guidance; disclosure) Zimbabwe CG [2013] UKUT 00059 (IAC). The Tribunal in that decision reiterated the guidance provided by EM and found that the guidance had not been “vitiated in any respect by the use made of anonymous evidence from certain sources in the Secretary of State’s Fact Finding Mission report of 2010.” The only amendment to the country guidance occurs in sub-paragraph (v) of the head note and is underlined:
5) 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.
4. That amended paragraph is directly relevant to the circumstances of the appellant in the current appeal whose home area of Zimbabwe is Harare and who the Judge Saffer found had failed to prove that he was from a high-density area of that city [35].
5. As I have noted above, country guidance for Zimbabwe has, with the promulgation of CM, come full circle in the months since permission was granted in this appeal. Although EM was not good country guidance at the time Judge Saffer promulgated his determination, the evidence upon which EM the country guidance in that decision derived and upon which Judge Saffer relied has now been shown (by CM) to have been both accurate and valid. I am aware that permission to appeal to the Court of Appeal has been granted in respect of CM but, at the date of the promulgation of this determination in the Upper Tribunal, CM remains good law and I have exercised my discretion not to set aside Judge Saffer’s determination notwithstanding the error of law which it contained. If I were to set it aside and apply the country guidance of CM to the facts as he found them, then the outcome of the appeal would be no different.
6. The other grounds of appeal take issue with the judge’s findings of fact. It is asserted that the judge failed to consider that the appellant went to claim asylum in 2002 but did not actually claim it. That ground has no merit given that the judge noted at [33] that, “[the appellant] has failed to establish that it is reasonably likely he went to claim asylum in 2002 as I only have his word for it which, given the adverse credibility findings in the determination … is inadequate.” Further, the appellant had claimed that he was a teacher in Zimbabwe and Judge Saffer at [34] found that he had failed to establish that it was reasonably likely that he had been a teacher. He noted the appellant’s “very low level of academic achievement” and also documentary evidence adduced by the appellant indicating that he had worked as a printer and not a teacher in Zimbabwe. This ground is, in my opinion, nothing more than a disagreement with findings which were open to the judge on the basis of the evidence before him. It was open to the judge, in particular, to have regard to the evidence that the appellant had been a printer in Zimbabwe (which appeared to contradict his claim to have been a teacher) and also to the incongruity between his low academic achievement and his claim to having taught, albeit in rural areas, in Zimbabwe.
7. For the reasons I have given above, I find that the First-tier Tribunal erred in law but I have declined to set aside this determination. The appeal is dismissed accordingly.
DECISION
8. This appeal is dismissed.

Signed Date 2 June 2013

Upper Tribunal Judge Clive Lane