Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/10406/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 17 October 2016
On 6 December 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE CHAPMAN

Between

M M
(ANONYMITY ORDER MADE)
Appellant
v

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr N. Garrod of counsel, instructed by RBM Solicitors
For the Respondent: Mr L. Tarlow, Home Office Presenting Officer

______________________________________

DECISION & REASONS
______________________________________

1. This appeal first came before me for an error of law hearing on 29 June 2016 when I decided that the First tier Tribunal Judge had materially erred in law in dismissing the appeal [decision appended]. The appeal was adjourned for a resumed hearing to take place on 17 October 2016. My directions confined the scope of the appeal to risk on return to Zimbabwe, in particular: whether the Appellant could be said to have a significant MDC profile; whether the Appellant would engage in political activities upon return which are likely to come to the adverse attention of ZANU-PF or would do so but for fear of coming to the adverse attention of ZANU-PF. The findings of the First tier Tribunal Judge at [67]-[69] of his decision were preserved i.e. that the Appellant would not be at risk on return to Zimbabwe on account solely of events that took place in 2001 and his evidence that there was an arrest warrant was not found to be credible.
Hearing
2. The Appellant was called to give evidence when he confirmed the contents of his statement of 10th October 2016. He also sought to rely on printouts from YouTube. He said that he would engage in political activities likely to come to the attention of Zanu-PF because he wanted things to change in Zimbabwe and for the government to stop mistreating and abusing people and that there are no jobs. He said that he was prepared to risk his life doing that and that this was why he was posting videos on YouTube - so that people could see and share it and that he and others wanted Mugabe to go.
3. In cross-examination by Mr Tarlow, the Appellant said that he started attending the Vigil in 2007 and attended lots of times although he was not sure in terms of numbers but he had done so continuously since 2007. He said that he had been attending at least 3 times a month. The Appellant confirmed that he supported the MDC in the United Kingdom. The Appellant confirmed that he lives in Thamesmead, but there is no branch of the MDC there and they meet on Saturdays at the Embassy once a month and he confirmed that he had attended the last two monthly meetings. The Appellant stated that he was not an office holder or committee member of the MDC but he took an official part. He denied that his involvement in the Vigil and meetings was purely to boost his asylum claim and stated that they had people all over the country who want change for Zimbabwe because the government have been abusing human rights.
4. The Appellant stated that he comes from Harare and that he had last been there in 2001; that it was both MDC and ZANU-PF and he agreed that it had become more MDC since he was there. However, he believed that he would be at risk if returned to Zimbabwe because it was not a safe place for people who oppose the government and the President and this was despite the fact that the area of Harare he comes from leans more towards MDC. The Appellant said that he would be at risk of being arrested, tortured and possibly being killed. He said the area he was from is a high density area.
5. In response to questions from the Upper Tribunal, the Appellant stated that he had an on-line presence on YouTube, Facebook, LinkedIn and there was also a page for the restoration of human rights in Zimbabwe, which put videos on-line. The Appellant stated that he also has a website - www.zimbabwevoicewhois[MM] and he provided handouts from this website. In respect of MDC meetings at the Embassy which take place on Saturday, the Appellant stated that they have a meeting outside the Zimbabwe Embassy, which is a public space and takes place at midday, when they do their vigil because it is easier for everyone to meet there. He said that anyone can speak but usually it was the leader, Ephraim Tapa, who speaks. The Appellant said that 20-30 people would usually attend.
6. In re-examination, the Appellant stated that he was not too sure whether his area of Harare was predominantly MDC or ZANU-PF. His counsel explained that he was being asked whether the political activists there support MDC or ZANU PF and he stated that ZANU PF had a physical presence and were still in the majority. The Appellant was then asked how his activities for MDC in London; "Yes We Can", the Restoration of Human Rights and the Vigil related to each other and he said that they were all for people who want change for Zimbabwe. With regard to "Yes we can" he said that his activity involved demonstrating on a monthly basis. The Restoration of Human Rights met once a month; the MDC met once a month and the Vigil took place two to three times a month, when they demonstrated and asked people to sign petitions. The Appellant stated that all the activities took place outside the Zimbabwe Embassy on Saturdays but some also took place outside London e.g. the Restoration for Human Rights has met in Southampton. He said that they communicated by email and the details are on line as to meetings; that meetings are normally an hour and the vigil starts at 12 - banners are put up - MDC, Yes We Can and Vigil banners. He confirmed that D1-D6 of the Respondent's bundle as to the MDC meeting at the Strand was correct in that they used to hire a room and that there were photos on-line on the Vigil website. He said that the building was at the Charing Cross end of the Strand opposite Tesco and that the Zimbabwe Embassy is on Trafalgar Square.
7. In his submissions, Mr Tarlow sought to rely on refusal letter dated 26.6.15. He drew my attention to the assertion in the refusal letter at [10] where it records that the Appellant stated that he had joined MDC in 2010 but was not active in MDC since 2013 and this was not an indication of someone who is active: see also the asylum interview at Q.100. In evidence the Appellant stated that he attended two meetings a month this year and last year and it was his submission that the Appellant attended the Vigil and MDC meetings purely to boost his asylum claim. He said the Zimbabwe authorities relied on evidence led intelligence and there is no reason why this individual should be wanted by the authorities in light of his activities which are self serving and low risk. Mr Tarlow invited me to dismiss the appeal.
8. In his submissions, Mr Garrod adopted his skeleton argument and the contents of the Appellant's witness statement dated 10.10.16. He submitted that it is not the Appellant's case that he held a position with the MDC but he does have a profile that is anti-government. He submitted that the YouTube clips were very relevant in that what is said in the interview is not terribly enlightening but when one looks at the clip and sees a picture of the Appellant with his name saying "Mugabe must Go" and openly criticizing Mugabe that is the profile that would cause him to be at risk. He submitted that the Appellant would be identified from the most cursory check on the internet because both his photo and name are on the internet. Mr Garrod submitted that the Appellant would be at risk on return, not just because he claimed asylum abroad but because he would be perceived to be in the opposition. He drew my attention to evidence of the Appellant's activities at the Vigil and his regular attendance, as confirmed by the letter from Rose Benton at Vigil and his Yes We Can membership card in original bundle. He submitted that, coupled with his on-line activities, the Appellant would be at risk.
9. With regard to the country guidance decision in CM at [214] he submitted that the Appellant would be reasonably likely to engage in such activities but for coming to adverse attention of ZANU PF and that with regard to [215] at (v) return would be to Harare and it was the Appellant's case that he would be returning to a high density area. Mr Garrod submitted that there was nothing specific to this case since these Country Guidance cases and he was unaware of any cases providing judicial comment on the role of social media and risk on return. He submitted that there is evidence the Appellant was taking part in activities in Zimbabwe in 2001 which led to his arrest and that the Appellant has a profile and would be at real risk on return.
Decision
10. I find the evidence of the Appellant as to his political activities in the United Kingdom to be credible. It was presented in a straightforward manner and is corroborated in its material respects by evidence, including printouts from websites on the internet; YouTube; photographs of the Appellant attending meetings, the Vigil and demonstrations and a supporting statement from Rose Benton of Zimbabwe Vigil dated 20.2.16 [C1-C2 of the Appellant's bundle]. I do not consider his political activities in the UK to be self-serving, given both the length of time he has been politically active and the breadth of his activities.
11. The country guidance decision in HS (returning asylum seekers) Zimbabwe CG [2007] UKAIT 00094 (IAC) at [34] reiterated the previous CG as set out in AA (Risk for involuntary returnees) Zimbabwe CG [2006] UKAIT 00061 as follows:
"248. All persons identified as deportees will be diverted for questioning by CIO officers who are required to produce a report in respect of all persons who have been forcibly removed to Zimbabwe from the United Kingdom, whether escorted on the plane or not. There is no indication that the authorities in Zimbabwe have any means to distinguish between deportees who have made an unsuccessful asylum claim in the United Kingdom and those who have been removed simply because they have no leave to remain.
249. The purpose of the initial interview is to establish whether the deportee is of any interest to the CIO or the security services. The deportee will be of interest if questioning reveals that the deportee has a political profile considered adverse to the Zimbabwean regime. Further interrogation away from the airport may also follow if enquiries reveal aspects of a military history to be followed up such as being absent without leave or being involved in military activities outside Zimbabwe. Also, the CIO will refer to the police any issues of outstanding criminal matters such as arrest warrants. There is no evidence that the fact alone of a past criminal conviction, as opposed to an unresolved allegation of criminal activity or an outstanding arrest warrant, will give rise to such an interest. There is also no evidence that the simple fact that a returnee has in the past served in the Zimbabwean army will prevent the passage of a returnee through the airport after this first stage enquiry.
250. If such a political or relevant military profile is suspected, or if there are outstanding criminal matters to be resolved, the deportee will be taken away by the relevant branch of the CIO for interrogation?
251. This second stage interrogation carries with it a real risk of serious mistreatment sufficient to constitute a breach of article 3. If the reason for suspicion is that the deportee has a political profile considered to be adverse to the Zimbabwean regime that is likely to be sufficient to give rise to a real risk of persecutory ill-treatment for a reason that is recognised by the Refugee Convention. That will not necessarily be the case where the only matter of interest is a relevant military history or outstanding criminal issues. Each case must be considered on its particular facts."
12. In RN (Returnees) Zimbabwe CG [2008] UKAIT the focus shifted from risk on return at the airport to what happens after a person has passed through the airport and entered into Zimbabwe [19]. This CG decision was then replaced by that of EM and Others (Returnees) Zimbabwe CG [2011] UKUT 98 (IAC) which was then supplemented by the decision in CM (EM country guidance; disclosure) Zimbabwe CG [2013] UKUT 00059 (IAC) which provides as follows at [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."
13. Whilst the Upper Tribunal has referred consistently to the phrase "significant MDC profile" I have been unable to find a specific definition. The underlying purpose of the phrase is that it is only those who are likely to have come to the attention of the Zimbabwe authorities who would be at risk on return, thus any political profile must be sufficient for there to be a reasonable degree of likelihood that the Appellant has come to the adverse attention of the Zimbabwe authorities either due to sur place activities and/or an active on-line presence. Mr Tarlow in his submissions made reference to the fact that the Zimbabwean authorities rely on intelligence led evidence and I accept that submissions.
14. On the basis of the evidence before me, I consider that this Appellant could be said to have a significant MDC profile. The starting point is the fact that it has been accepted by the Respondent that the Appellant was attacked and detained due to his political opinion in Zimbabwe in September 2001, following which he immediately fled from Zimbabwe and came to the United Kingdom. Whilst the letter from Rose Benton of Zim Vigil states that the Appellant has been demonstrating outside the Embassy since October 2002, it was the position of the Respondent and the First tier Tribunal Judge that he joined the MDC in the United Kingdom in 2007 and he also joined Zim Vigil in 2007. His MDC activities consisted of signing petitions and attending meetings. He has attended demonstrations on a weekly basis outside the Zimbabwean Embassy for Zim Vigil and the MDC and currently attends monthly, along with his other activities. In January 2015 he joined "Zimbabwe Yes we can" and he also belongs to a human rights organization Restoration of Human Rights. The Appellant has a presence on YouTube and his own website, linked to the Zimbabwe Voice website. There are photographs of the Appellant in the bundle taken in September 2014, January 2016 and February 2016 showing him at demonstrations and a number of YouTube videos of the Appellant. The Appellant has been active in his opposition to the Zimbabwe regime for at least 9 years, since 2007 and considering his activities cumulatively, I consider there is a serious possibility that he has been identified by the Zimbabwean regime and would be perceived by them as a person with a significant MDC profile.
15. The CG decision in HS was made nine years ago and the decision of AA was ten years ago. On the basis of those decisions, I find that the Appellant would be at risk on return because he would be identified as someone with a political profile and he would thus be transferred to the CIO for interrogation, with a concomitant risk of torture and ill-treatment, which would amount to persecution and/or treatment in breach of Article 3 of ECHR. However, there is no recent country guidance or up to date evidence as to the risk on return at the airport to a MDC activist with a significant profile. Therefore, I go on to consider whether the Appellant would engage in political activities upon return which are likely to come to the adverse attention of ZANU-PF or would do so but for fear of coming to the adverse attention of ZANU-PF.
16. The Appellant is from Highfield in Harare. It is his case that this is a high density area and he submitted evidence from the ZRP charge office and his uncle [MF] that his uncle's house in Highfield was broken into and that he and the Appellant's son, M Junior, were assaulted for political reasons on 28 July 2016 [B1-B4 of the Appellant's bundle refer]. This evidence was not challenged by Mr Tarlow and I find that the Appellant is from a high density area and that his uncle and his son were assaulted due to their perceived political opinion. The Appellant is a family member of his uncle and son and holds the same political opinion and I find that he would be at real risk of detention and ill-treatment for this reason. The Appellant's evidence was that he would criticize the regime and he would risk his life in order to do so. I accept his evidence given his history of political opposition to the Zimbabwean authorities. In HJ (Iran) at [18] Lord Hope held that "the fact [an applicant for asylum] could take action to avoid persecution does not disentitle him from asylum if in fact he will not act in such a way as to avoid it. That is so even if to fail or to refuse to avoid it would be unreasonable." This approach was followed by the Court of Appeal per Beatson LJ in SSHD v MSM (Somalia) [2016] EWCA Civ 715. I find that there is a serious possibility that the Appellant would exercise his right to freedom of speech and political expression if he returned to Zimbabwe and that he would be at risk of persecution for this reason.
17. The appeal is allowed on the basis that removal of the Appellant would be contrary to the United Kingdom's obligations with regard to the 1951 Refugee Convention and because it would be contrary to Article 3 of the European Convention on Human Rights.

Deputy Upper Tribunal Judge Chapman

6 December 2016