Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/12250/2015

THE IMMIGRATION ACTS

Heard at Birmingham
Sent to parties on:
On 14 November 2016
On 25 November 2016

Before

UPPER TRIBUNAL JUDGE HEMINGWAY

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

MN
(Anonymity order continued)
Respondent

Representation:
For the Appellant: Mr M Mills (Senior Home Office Presenting Officer)
For the Respondent: Mr C Lane (Counsel)

DECISION AND REASONS

1. The appellant in this appeal to the Upper Tribunal is the Secretary of State for the Home Department (hereinafter "the Secretary of State"). The respondent in this appeal, since I have decided to continue an anonymity order made by the First-tier Tribunal, is to be simply referred to as MN (but hereinafter "the claimant"). The Secretary of State has appealed to the Upper Tribunal from a decision of the First-tier Tribunal (Judge Shergill hereinafter "the Judge") promulgated on 6 May 2016, allowing the claimant's appeal against the Secretary of State's decision of 4 September 2015 refusing to grant him asylum or any other form of international protection.
2. By way of brief background, the claimant is a national of Zimbabwe and was born on 26 October 1981. He entered the UK on 30 March 2015 and claimed asylum upon arrival. In making his claim he said that he had originally been a member of the Zanu PF political party in Zimbabwe but that, in 2012, he had changed his allegiance and had joined the Movement for Democratic Change (MDC). He claimed that, in consequence of this change of allegiance, he was arrested by the Zimbabwean authorities on three occasions and was ill-treated. He stated that he had been kept in a cell and had been raped on two occasions by officers in charge of his detention and that he had been taken to a farm and shown a place where police officers loyal to the regime would drown MDC supporters. He had, he said, secured his most recent release from custody through payment of a bribe after which he had fled Zimbabwe.
3. The Secretary of State did not accept the claimant's account as being truthful. So, his claim was refused. His appeal was heard by way of an oral hearing which took place on 22 April 2016. He gave evidence. Both parties were represented. The Judge, it is fair to say, was impressed with the appellant's oral evidence and at paragraph 17 of his determination said this;
"17. I have had the benefit of hearing from the appellant whom I accept was a straightforward and candid witness. The accounts given were plausible and consistent and I was able to attach full weight to all of the evidence I heard."
4. The Judge then went on to explain his findings and the reasoning which underpinned his decision to allow the appeal in more detail in a passage running from paragraph 20-32. He said this;
"Membership of ZanuPF and MDC
20. I am satisfied to the lower standard that the appellant was a member of ZanuPF. I have noted the various objections raised in the refusal as to inconsistencies, lack of knowledge about the party, and the appellant's vague account of membership. However, having heard from the appellant and considered all of the further evidence I am satisfied that satisfactory evidence has been produced to find to the lower standard that the appellant was a member of ZanuPf as claimed; and that he decided to change allegiance.
21. I am therefore satisfied having changed allegiance he went over to support MDC. I am satisfied that he undertook the activities that he claimed in relation to organising dates, travel, leaflets et cetera. I do not attach the significance that the respondent does to the inconsistencies about what the appellant did for the MDC or the inability to name the various personnel. The appellant's case has always been that he was a relatively low-grade figure and undertook relatively minor tasks. In those circumstances one would not expect detailed knowledge when considering the evidence at the lower standard. I am satisfied inconsistencies or lack of knowledge may arise. The account given in oral evidence as to the motivations for switching parties and the steps that the appellant undertook for the MDC were credible. That accounted for any potential for adverse inferences about inconsistencies etc.
22. I have considered the expert report that was provided. I note the submissions made by the presenting officer as to the caution that I should take with regards to this report. However, the conclusions drawn on the report with regards to the low level of knowledge within the party about the party structure et cetera is not a particularly controversial conclusion. When assessing all of the evidence in the round the appellant's claims of supporting the MDC and the roles that he undertook are credible at the lower standard.
23. I do not draw any adverse findings with regards to the motivation for changing parties which appears to have formed a significant part of the refusal. The MDC was an emerging party during the relevant time period that this case concerns. It was well documented in the world news as to the issues that Zimbabwe was facing during this time period and the harassment and crackdown on MDC supporters. That is well documented in the various cases that have appeared within this jurisdiction. I do not put the weight as to any inconsistencies in the accounts that the respondent does with regards to any of these matters. Furthermore, having decided that this was a relatively minor issue the issues relating to any benefit he would derived [sic] was not relevant in my view; he was supporting the new (potential) dominant power.
24. The appellant's claims as to being arrested and mistreated by the police form the basis upon which he fears returning to Zimbabwe. I note the submission in the skeleton argument that the appellant's account of how he was treated is not inconsistent with the country evidence. I agree with that submission. I further agree with the submission made about the lack of clear questioning. As such, the inferences and conclusions drawn by the respondent as to the lack of detail and inconsistency lose their potency. When considering all of the evidence in the round and to the lower standard I am satisfied that the appellant was likely to have been detained on the dates claimed and that he was maltreated on those occasions. I was particularly persuaded by the manner in which he described what mistreatment he faced and how and why the police would carry that particular type of mistreatment out. His evidence was fluid and animated with hand gestures showing the positions he was held/ assaulted in, which persuaded me that it actually happened to him. I am satisfied that the appellant's evidence had the ring of truth. When assessing all of the evidence in the round and particularly given that I have broadly accepted all of the other evidence the appellant has relied upon, I am satisfied that he was mistreated as claimed.
25. I am satisfied that the appellant had lived in Bulawayo until February 2013, Masuingo until October 2013 and then in Gwanda (i.e. in different areas of the country). I am satisfied that Gwanda is the capital of the province of Matabeleland South.
26. I note there is consistency in the answers in the screening interview and later evidence regards [sic] the 'attacks' (which I am satisfied relate to arrests). I am satisfied that the appellant was beaten by others in February 2013; then arrested/ detained by the police in October 2013 whilst in Bulawayo. I accept he was then arrested in January 2014 and again in January 2015 which must have been in Gwanda.
27. I note the reliance on the case of CM (Zimbabwe) CG [2013] UKUT00 059. I note the head note paragraph 3 which states:
"(3) The only change to the EM Country Guidance that it is necessary to make as regards the position as at the end of January 2011 arises from the judgments in RT (Zimbabwe) [2012] UKSC 38. The EM Country Guidance is, accordingly, re-stated as follows (with the change underlined in paragraph (5) below):
(1) As a general matter, there is significantly less politically motivated violence in Zimbabwe, compared with the situation considered by AIT in RN. In particular, 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 ZANU-PF.
(2) The position is, however, likely to be otherwise in the case of a person without ZANU-PF connections, returning from the United Kingdom after a significant absence to a rural area of Zimbabwe, other than Matabeleland North or Matabeleland South. Such a person may well find it difficult to avoid adverse attention, amounting to serious ill-treatment, from ZANU-PF authority figures and those they control. The adverse attention may well involve a requirement to demonstrate loyalty to ZANU-PF, with the prospect of serious harm in the event of a failure. Persons who have shown themselves not to be favourably disposed to ZANU-PF are entitled to international protection, whether or not they could and would do whatever might be necessary to demonstrate such loyalty (RT (Zimbabwe)).
(3) The situation is not uniform across the relevant rural areas and there may be reasons why a particular individual, although at first sight appearing to fall within the category described in the preceding paragraph, in reality does not do so. For example, the evidence might disclose that, in the home village, ZANU-PF power structures or other means of coercion are weak or absent.
(4) 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.
(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.
(6) 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 issue of what is a person's home for the purposes of internal relocation is to be decided as a matter of fact and is not necessarily to be determined by reference to the place a person from Zimbabwe regards as his or her rural homeland. As a general matter, it is unlikely that a person with a well-founded fear of persecution in a major urban centre such as Harare will have a viable internal relocation alternative to a rural area in the Eastern provinces. Relocation to Matabeleland (including Bulawayo) may be negated by discrimination, where the returnee is Shona.
(8) Internal relocation from a rural area to Harare or (subject to what we have just said) Bulawayo is, in general, more realistic; but the socio-economic circumstances in which persons are reasonably likely to find themselves will need to be considered, in order to determine whether it would be unreasonable or unduly harsh to expect them to relocate.
(9) ?
28. The appellant's past problems appear inconsistent with the country guidance which would suggest there would not be 'persecution' as claimed. That was how things stood as at January 2011. I have considered the objective evidence provided by the appellant which is more recent in nature and from various (generally) reliable websites etc. I have also considered the expert evidence. I have considered whether I can follow country guidance given that the country guidance appears to be outdated by reason of ongoing human rights concerns in Zimbabwe. I have considered DSG & Others (Aghan Sikhs: departure from CG) Afghanistan [2013] UKUT 00148. I am satisfied that the appellant has provided sufficient credible fresh evidence relevant to the issues he relies on that has not been considered in the country guidance case. I have decided that it is open to me to depart from the country guidance in those circumstances.
29. I am satisfied that the appellant had previously been on the authorities' radar regarding his switch to MDC. That is despite his low-level status. I am satisfied that he has been arrested as recently as January 2015 in his previous home area. That would tend to suggest that the country guidance is no longer reliable. I note the objective evidence at page 136 of the appellant's bundle which cites a US State Department country report in 2013. That tends to support ongoing torture and abduction of MDC supporters. Furthermore, the reports indicate there were further problems after the 2013 elections. That would also tend to undermine reliability on the country guidance as to how things stand today and I depart from it for those reasons.
30. I am satisfied in those circumstances that the appellant is likely to be known to the security services albeit not in the capacity as an activist but more likely due to his adverse criminal profile (HS (returning asylum seekers) Zimbabwe CG [2007] UKAIT 00094). That was because he was detained on three occasions. The treatment which I have accepted as credible that he suffered in January 2015 put him in an analogous category because this tends to indicate he is on the radar of intelligence services. That is particularly so if he is someone who has previously rescinded his ZanuPF membership.
31. In those circumstances, I am satisfied that the appellant had previously suffered ill-treatment and his subjective fears about facing future ill-treatment when considered objectively are well founded. I further consider that relocation in the particular circumstances of this case is not a reasonable or realistic option. Even if he was able to re-establish himself economically with a settlement grant the home areas that the appellant previously lived are likely to no longer be safe because he has come the authorities' attention there. [sic] I am not satisfied that it would be reasonable to move to other areas within the country when he has clearly suffered persecution in at least two different areas over a period of time. I conclude this heightens the risk generally to this appellant to make relocation ineffective in terms of risk elimination, unrealistic and unreasonable.
32. For all of these reasons I have concluded that there are substantial grounds for believing that the appellant is unable to return to Zimbabwe be reason of a well-founded fear of persecution for a refugee convention reason. The risk is acute in his case because of the likelihood that he is on the radar of authorities in a similar manner to MDC activists. That fear is objective and is on the basis of change of political affiliation (as the social group) and in particular as a person who has been arrested and abused by the authorities on a number of occasions in different areas. I accept that he is unable or unwilling, owing to such fear, to avail himself of the protection of that country. I am satisfied that the protection afforded in the context of the situation for someone in this position is in essence, illusory. Indeed, the state agents have been the perpetrators of violence in his specific circumstances."
5. The Secretary of State applied for permission to appeal to the Upper Tribunal. In ground 1 the Secretary of State contended that the Judge's positive credibility findings had been inadequately explained and that, as a specific point in that overall contention, the Judge had made a factual error in considering the MDC to have been an "emerging party" at the time of the claimant's shift of allegiance bearing in mind that it had been formed in 1999. In ground 2 it was contended that the Judge had given inadequate reasons for failing to depart from applicable Country Guidance as set out in the case of CM (Zimbabwe) CG (2013) UKUT 00059 bearing in mind the stringency of the test for departing from Country Guidance as set out in the judgment of the Court of Appeal in SG (Iraq) v Secretary of State for the Home Department (2012) EWCA Civ 940. In ground 3 it was contended that as to the internal flight alternative, the Judge had failed to consider whether the claimant could safely relocate to Harare.
6. A Judge of the First-tier Tribunal granted permission on all grounds. In so doing he said this;
"Although the first ground may appear to be little more than a disagreement with the Judge's findings, it is true that a number of credibility issues were raised in the decision letter, and it is arguable that the Judge has failed to provide adequate reasons, in his decision for finding the appellant to be credible. His description of the MDC as an "emerging party" from 2002 - 2012 arguably ignores the fact that it was established in 1999 and that it contested every election from 2000 onwards. It is similarly arguable that, in paragraph 28 of his decision, the Judge has failed to provide adequate reasoning for his decision to depart from the existing Country Guidance case law. His findings on internal relocation in paragraph 31 are brief and, arguably, inadequate."
7. A hearing before the Upper Tribunal (before me) was convened so that it could be considered whether or not the Judge had erred in law and, if so, what should flow from that. Representation was stated above and I am grateful to each representative for the careful and helpful oral submissions which I received. I have taken all of what was said into account and, where necessary or otherwise appropriate, I have referred to what was said in explaining my decision.
8. In fact, I have concluded that the Judge did err in law with respect to his favourable credibility assessment and, to an extent, in the way in which he dealt with the applicable Country Guidance. I have decided that the combination of those errors is sufficient to render the Judge's findings unsafe so that it has to be set aside. I set out my reasoning below.
9. In general terms credibility is a matter for the First-tier Tribunal. Of course, the First-tier Tribunal Judge is perfectly entitled to take account of oral evidence where such evidence is found to be persuasive otherwise, as Mr Lane submits, there would seem to be little point in having an oral hearing. Nevertheless, when explaining findings and when explaining why a positive credibility assessment or for that matter a negative one has been made, a Judge is required to give adequate (although no more than that) reasons as to why such a view has been reached. I would also make the point, at this stage, that a credibility assessment is a composite assessment which, normally, will not be based exclusively upon a view of the oral evidence but will also take into account relevant documentary evidence as well.
10. I have set out, above, paragraph 20 of the Judge's determination. The Judge did refer in passing to various points made in the reasons for refusal letter concerning the veracity of the account. He then said that having heard from the claimant and having "considered all of the further evidence" he was satisfied to the lower standard that the claim concerning previous membership of Zanu PF and the subsequent change of allegiance had been made out. Mr Mills criticises that paragraph, in particular, for a lack of actual reasoning. I have concluded that he is right to do so. I take Mr Lane's point that the Judge had indicated that he had found the oral evidence to be persuasive. However, paragraph 20 does not contain any explanation of a meaningful nature as to why it is that the various concerns expressed by the Secretary of State in the reasons for refusal letter were being rejected. It seems to me that some form of explanation, even if brief, was required.
11. Further, at paragraph 21, the Judge indicated his acceptance of the claimant's contention that he had subsequently become associated with the MDC. He appeared to accept (or at least he did not make it clear he was rejecting) the contention that there had been some inconsistency in what the claimant had indicated as to what he had done for the MDC and that there had been an inability on his part to name "various personnel" within the MDC. The Judge, however, against the background of his having found the oral evidence to be persuasive, decided that since the claimant had said he had only operated at a low level for the MDC such was explicable. I can readily see that a low level member or supporter might not necessarily be expected to be able to name national or local political figures within a party. However, as Mr Mills points out, low level involvement would not appear, of itself, to explain inconsistency with respect to any minor tasks which were actually undertaken for the MDC. As such, I consider that the Judge has failed to adequately explain why it was that he was prepared to effectively overlook inconsistency in that regard.
12. At paragraph 23 of his determination the Judge specifically addressed the question of the claimant's motivation for changing parties. As I read that paragraph, the Judge was saying that, in part, the change of allegiance was explained by the fact that the MDC was, at the time, an "emerging party" which it seemed might have been close to taking power. Mr Mills' contention as to that paragraph was simply to the effect that the Judge had wrongly thought that the MDC was "emerging" at that time (2012) because it had been in existence since 1999 and had contested a number of elections between 1999 and 2012. So, to put it a slightly different way, the Judge's factual error had wrongly informed his credibility assessment and had wrongly influenced the positive view which had been taken in that regard. Mr Lane, however, argued that it was clear, in context, that the Judge was using the term "emerging" not as akin to something like starting out but more in the sense of a party which had developed to the extent to which it was now clearly conceivable it could take power. So, on that view, there had been no factual error on the part of the Judge.
13. I appreciate that it is not appropriate to seek to interpret the words used by the Judge as one would seek to interpret a statute. In fact, I cannot be sure, in looking at the words used by the Judge, whether he mistakenly thought that the MDC was only starting out in or around 2012 or whether he was using the word emerging in the somewhat different sense which had been suggested by Mr Lane. However, it is the uncertainty which gives rise to the problem. Certainly, the Judge did appear to link his conclusion that the party was emerging at the time with his finding that the claimant had properly explained his conversion. In the circumstances I cannot be satisfied that, given the lack of clarity in the relevant passage, he was basing his finding in that regard on a proper understanding of the history and development of the MDC.
14. There is, of course, the concern regarding the Country Guidance decision of CM. Mr Lane urged me to conclude that the Judge, in effect, had not been intending to find that what was said in CM in general terms had to be disregarded but, rather, that there were particular factors in the claimant's case, in particular the change of allegiance, which had not been properly considered in CM (or indeed considered at all) so that a limited departure on the particular facts of this case was appropriate.
15. It seems to me in looking in particular at the closing sentence of paragraph 29 but also in reading what the Judge had to say as a whole, that he was deciding that the conclusions in CM had been superseded by later events. That would explain his reference to background country material (the US Department of State report for 2013) which he suggested undermined continued reliance upon the Country Guidance. So he was going much further than Mr Lane says he was. I accept Mr Mills submission that if he was saying the Country Guidance should no longer be followed (which I have decided he was) he was obliged to do very much more by way of justification than he did. Further, it seems to me that this error did have some influence upon the Judge's positive credibility assessment. That is because he acknowledged that the claimant's contentions regarding the past problems appeared to be inconsistent with what was said in CM but then appeared to say that background country material which was "more recent in nature" was sufficient to render it open to him "to depart from the Country Guidance in those circumstances". So, the error was material.
16. It is not necessary for me to say anything further. The credibility assessment is unsafe and, in consequence, the Judge's decision must be set aside.
17. At the hearing both representatives indicated that they took the view, if I were to set the decision aside, that remittal to the First-tier would be the most appropriate course of action. I accept that is so for two main reasons. First of all, there will have to be a fresh credibility assessment and fresh factual findings on all matters raised by the appeal. That task is best undertaken by the First-tier Tribunal as an expert fact finding body. Secondly, the Judge did not deal with separate Article 8 arguments which had been put on behalf of the claimant because, having to decided to allow the appeal on international protection grounds, that was not necessary. That does mean there has been no initial appellate assessment at all with respect to those Article 8 contentions. It does not seem to me to be appropriate for such matters to be addressed, in these circumstances, for the first time, by the Upper Tribunal.
18. In conclusion then, the Judge's decision involved the making of errors of law and is set aside. The appeal is remitted so that there can be a complete re-hearing before the First-tier Tribunal so that the decision can be re-made. I have, below, set out some directions which will hopefully assist with the re-making process.

Directions
A. There will be a complete re-hearing of this appeal before the First-tier Tribunal. That re-hearing will not involve Judge Shergill.
B. The time estimate for the re-hearing shall be three hours. It shall take place at the Birmingham hearing centre. It does not appear that there are any interpreter requirements, but if there are the claimant's representatives shall notify the First-tier Tribunal as to that, within fourteen days of this decision being issued.
C. It appears that all of the documentation previously relied upon is still on file. However, should either party wish to file further documentary evidence (including any further witness statements or background country material) that should be lodged with the First-tier Tribunal at least five working days prior to the date which shall be fixed for the re-hearing. A copy of such material should simultaneously be sent to the other party.
D. The parties should not assume that any documentation not filed in accordance with these directions will be admitted for consideration.
Decision
The decision of the First-tier Tribunal involved the making of an error of law. That decision is set aside. The case is remitted to the First-tier Tribunal for a complete re-hearing.

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 his family. This direction applies to both the Appellant and Respondent. Failure to comply could lead to contempt of court proceedings.

Signed

M R Hemingway
Judge of the Upper Tribunal

Dated

To the Respondent
Fee Award

I make no fee award.

Signed

M R Hemingway
Judge of the Upper Tribunal

Dated