Tribunal decisions

The decision

Appeal No. CC04291-2002
MN (Returns-Policy-War Veterans) Zimbabwe CG [2002] UKIAT 05806

IMMIGRATION APPEAL TRIBUNAL

Date heard: 11 November 2002
Date notified:….19 December 2002..….…….…......…
Before:-

DR H H STOREY (Chair)
MRS W JORDAN

Between

MS MILLINAH NCUBE
Appellant

And

SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

DETERMINATION AND REASONS

1. The appellant, a national of Zimbabwe, has appealed with leave of the Tribunal against a determination of Adjudicator, Mr N P Dickson, dismissing the appeal against the decision by the respondent refusing to grant leave to enter on asylum grounds. Mr A Durance of Counsel instructed by Musa A Patel & Co Solicitors represented the appellant. Mr Ekasha appeared for the respondent. At the outset the Tribunal refused to admit further items of evidence submitted by the appellant’s representatives because they were not filed in accordance with directions.

2. The Tribunal has decided to dismiss this appeal.

3. The basis of the appellant’s claim was that as a result of being an MDC member her husband had been badly beaten on three occasions before going into hiding for several months and fleeing the country in February/March 2001. She had then been targeted by the war veterans who came to her home in April 2001 in search of her husband. Prompted by the death of one of their colleagues on 5 November 2001, five war veterans visited her home on 1 December 2001 and threatened her life because she would not tell them the whereabouts of her husband. She then fled to her sister’s where she arranged to depart from the UK.

4. Although prepared to accept that the appellant had been visited in April 2001, the adjudicator did not accept her account of a follow-up visit. He did not think that if the war veterans had really been interested in the appellant’s husband, they would have allowed some 7 or 8 months to elapse before paying a return visit. He did not find it credible that the war veterans would have obtained her husband’s information from stolen MDC records. Finding that on the evidence the appellant had been able to live in Zimbabwe without difficulty between April 2001 and December 2001, the adjudicator noted further that it appeared the appellant had travelled to South Africa, seemingly without problems.

5. Leave was granted confined to ground 4. This contended that the adjudicator had wrongly taken account of the findings of another adjudicator in another case, made findings which ignored the objective materials relating to war veterans, failed to acknowledge that on his own findings there had been a war veteran interest in her and her family in the past on account of their membership of the MDC and failed to recognise that Home Office suspension of removals was proof of refugee status.

6. As regards the first contention, this related to the adjudicator`s observation that the appellant’s husband’s asylum appeal had been dismissed by an adjudicator. Since that is all that the adjudicator says about the appellant’s husband’s asylum claim, it is difficult to see how that translates into the adjudicator wrongly relying on the decision of an adjudicator in another case. But in any case the fact of the matter was that the appellant had not established that her husband’s asylum claim had been accepted. Nor had her husband chosen to give evidence in her appeal. In such circumstances the adjudicator was perfectly entitled to assess the appellant’s case on the basis that her husband’s case had not succeeded.

7. As regards the second contention, that the adjudicator assessed the case in ignorance of objective materials relating to war veterans, we see no merit in that whatsoever. The adjudicator made express reference to objective country materials whose contents documented abuses by war veterans.

8. The third contention essentially takes issue with the adjudicator’s conclusion that the appellant would not be at risk of persecution because she had been able to remain in Zimbabwe without difficulty for some 7 and 8 months after the visit from the war veterans in April 2001.

9. In part this contention amounts to a challenge to the adjudicator`s finding that the appellant was not visited further by the war veterans as claimed. Although it is doubtful this point was covered by the narrow grant of leave, we shall address it.

10. We consider the adjudicator’s finding that the appellant had failed to show she in fact had trouble with the war veterans after April 2001 was entirely sustainable. If the appellant had really believed the war veterans` threats to kill her, it is difficult to understand why she should have stayed living in the same house for a further 7-8 months. If the war veterans had any ongoing interest in her husband after establishing he was not there in April 2001, it was not credible that they would then wait 7 or 8 months before seeking to pursue him afresh. We recognise that the appellant sought to explain this period of delay. The explanation she gave was that they had come in December 2001 as a result of the killing of one of their comrades on November 5 2001, very shortly after which they had discovered information about her husband in stolen MDC records.

11. The adjudicator did not find this explanation credible. He did not give reasons. He should have. However, considering the matter for ourselves, we think the adjudicator was justified in rejecting this explanation. On the one hand it left unexplained why they had done nothing prior to the alleged discovery of further information about her husband. For another, if it was the discovery of information about her husband following the death of one of their colleagues, it was not reasonably likely the war veterans would have waited a further two weeks before visiting her home. The only point made in the grounds is that the adjudicator was wrong to assume that MDC records were not sometimes stolen. We do not see that the adjudicator anywhere made such an assumption.

12. In addition to the unsatisfactory nature of the evidence concerning further interest in her by he war veterans, there was a further aspect of the appellant’s evidence which indicated that she was no longer concerned about any adverse attention fro the war veterans or ZANU-PF. On her account she spent much of this period sorting out her property affairs. There was no satisfactory evidence that she kept a low profile during this time.

13. The grounds are correct to point out that the adjudicator’s conclusions, albeit rejecting the appellant’s claim to have a well-founded fear of persecution, accepted that the war veterans had targeted the appellant in the past. However, we cannot see on the evidence in this case that this fact takes the appellant’s case very far at all. On the adjudicator’s findings about what happened to the appellant in the subsequent period before she left Zimbabwe, the war veterans had plainly ceased to have any interest in her or her husband. If they had interest in either they would have visited her again sometime shortly after their April 2001 visit. The appellant’s subsequent behaviour in taking steps to sell her property did not bear out that she herself continued to feel at risk either.

14. Thus in our view this appeal comes down to the issue of whether the appellant would be at risk upon return as someone who, along with her husband, was a member of the MDC. The adjudicator plainly accepted that both the appellant and her husband were MDC members and we see no reason to take a different view. There was no satisfactory evidence that either she or her husband were prominent MDC members or activists.

15. Mr Durance contended that these bare facts were enough to put the appellant at risk. In support he pointed to the fact that the Home Office continued to operate a policy of not returning failed asylum seekers to Zimbabwe.

16. Before proceeding further, we should deal briefly with two matters. One concerned Mr Durance`s argument that the Tribunal in Hassan (HX/23318/2001) had endorsed the view that a Home Office policy of non-return was tantamount to an acceptance that a person qualified for refugee status. This argument is devoid of merit. The Tribunal in Hassan was solely concerned with the policy in that case. That policy set out evidence that the Foreign and Commonwealth Office had advised that any Libyans returning to that country after an absence of six months or more were subject to an interrogation by the Libyan security authorities and that failed asylum seekers were routinely imprisoned by administrative (as opposed to judicial) order for ‘having shown disloyalty to the state’. Plainly what the Tribunal meant in Hassan was that the terms of this particular policy themselves established that the appellant was a refugee. Mr Durance is quite wrong to try and eke out of Hassan a general view that the Senga point means that all Home Office policies suspending removal of failed asylum seekers establish their status as refugees.

17. The other matter concerned the adjudicator’s approach to the Home Office policy suspending removals to Zimbabwe. At paragraph 15 the adjudicator wrote:

“If the respondent was returning failed asylum seekers to Zimbabwe at the present time, then I would be concerned that there could be a persecution for a Convention reason in that discrimination of failed asylum seekers could be evidence of an imputed political opinion (Senga 12842). In these circumstances it could be envisaged that the simple act of claiming asylum abroad was contrary to the interests of the Zimbabwean government. However Bulletin 1 of 2002 states that on 15 January 2002 the Home Secretary announced that removals to Zimbabwe from the United Kingdom of failed asylum seekers would be suspended until after the presidential elections in March 2002 and in the meantime the situation would continue to be closely monitored by the Home Office with a view to reappraising the situation immediately after the elections had been held. In my view this means that the Respondent will not be returning failed asylum seekers until he is satisfied that it is safe for the asylum seekers to be returned. I accept this view. Accordingly I do not consider that the Appellant has established a well founded fear of persecution for a Convention reason…”

18. The adjudicator doubly erred here. Firstly he erred in forgetting that it is a well-established principle of refuge law in this country that risk has to be assessed as at the date of hearing. It does not stand to be assessed according to some time in the future when the Secretary of State decides to change a policy he has on returns. Secondly, the adjudicator erred in concluding that the existence of a Home Office policy suspending removal entailed a conclusion that the appellant would face persecution for a Convention reason. What has to be decided in an appeal under s. 69 of the 1999 Act is solely whether the decision is contrary to the Refugee Convention. A Home Office policy concerning non-return is at best relevant evidence that return would place a person at a real risk of persecution or treatment contrary to their human rights. How relevant will depend very much on the particular contents of that policy.

19. Insofar as Mr Durance purported to argue that the particular Home Office policy on Zimbabwe entailed acceptance that all failed asylum seekers from Zimbabwe qualified as refugees, nothing we have heard persuades us to take a different view from that expressed by the Tribunal in the case of Chiremba [2002] UKIAT 03761 in which it was said:

“The background documentation clearly establishes that there are continuing breaches of human rights in Zimbabwe, but we find nothing to suggest that it would be unsafe for all asylum seekers to be returned. Each case must be judged on its merits. We regard the Respondent’s current policy as part of the picture and in no way determinative of an individual appeal one way or the other”.

20. For the above reasons this appeal is dismissed.

DR H H STOREY
VICE-PRESIDENT