Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/16013/2011

THE IMMIGRATION ACTS

Heard at Nottingham Magistrates Court
Determination Promulgated
on 5th June 2013
on June 2013

Before

UPPER TRIBUNAL JUDGE HANSON

Between

WASHINGTON KAVHAI
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellant: Mr Hodgetts instructed by Paragon Law Solicitors.
For the Respondent: Mr McGirr Senior Home Office Presenting Officer.

DETERMINATION AND REASONS

1. On 16th November 2011 Upper Tribunal Judge Grubb granted the appellant permission to appeal against the decision of a panel of the First-tier Tribunal who dismissed his appeal against a decision to deport him from the United Kingdom made pursuant to section 5 Immigration Act 1971.

2. On the 22nd April 2013 Principle Resident Judge Southern issued directions in which it is recorded that it was agreed by the parties that the determination of the First-tier Tribunal contains an error of law such that it should be set aside and the decision remade.

3. The appeal comes before me for the purposes of the Resumed hearing. Having considered the evidence in detail I substitute a decision by allowing the appeal, as advised in court, and now give my reasons.

Background

4. The appellant was born on the 6th December 1958 and is a citizen of Zimbabwe. He arrived in the United Kingdom on 29th July 1990 and thereafter was granted various periods of leave to enter. On 19th October 2002 he submitted a further application for leave to remain as a work permit holder which was refused. He was a professional musician in Zimbabwe.

5. On 23rd February 2003 the appellant was convicted of witness intimidation on a guilty plea and on 27th February 2003, after trial, of threats to kill, false imprisonment, attempted rape, rape and indecent assault on his former wife, for which he was sentenced to six years and nine months imprisonment. He was ordered to be placed upon the sex offenders register indefinitely and recommended for deportation by the trial judge. Applications to appeal his conviction and to seek the assistance of the Criminal Case Review Commission were unsuccessful.

6. On 26th June 2007 the respondent notified the appellant of his intention to deport him to Zimbabwe. A number of further applications were made which are detailed in the respondent’s letter dated 29th June 2010 and the First-tier determination [para 4-6].

7. This Tribunal is tasked with applying the relevant law to the facts of this appeal. The appellant seeks to rely upon Article 3 ECHR. The United Kingdom is a signatory to that Convention and bound by its terms. In addition, the Human Rights Act 1998 gives further legal effect in the United Kingdom to the fundamental rights and freedoms contained in the ECHR which Judges must apply. Section 6 of the Human Rights Act specifically states:

6 Acts of public authorities.E+W+S+N.I.
(1) It is unlawful for a public authority to act in a way which is incompatible with a Convention right.
(2) Subsection (1) does not apply to an act if—
(a) as the result of one or more provisions of primary legislation, the authority could not have acted differently; or
(b) in the case of one or more provisions of, or made under, primary legislation which cannot be read or given effect in a way which is compatible with the Convention rights, the authority was acting so as to give effect to or enforce those provisions.
(3) In this section “public authority” includes—
(a) a court or tribunal, and
(b) any person certain of whose functions are functions of a public nature,
but does not include either House of Parliament or a person exercising functions in connection with proceedings in Parliament.

8. This Tribunal is therefore legally obliged to apply the ECHR unless and until Parliament repeals the legislation and/or revises the United Kingdom’s obligations under the Convention.

9. This appeal engages Article 3 ECHR which states:

Article 3 – Prohibition of torture

No one shall be subjected to torture or to inhuman or degrading treatment or punishment.

10. In A v The Netherlands (Application no. 4900/06) ECtHR (Third Section), reported on 20th July 2010, several governments, including the United Kingdom, intervened in the proceedings and sought to challenge what they considered to be Strasbourg’s rigid application of the absolute prohibition on ill-treatment under Article 3. They argued that the Court’s interpretation of Article 3 meant that risk of ill-treatment could not be weighed against the reasons for expulsion, even national security and that this approach prevented them in practice from enforcing expulsion measures. The States proposed that if evidence was presented that the individual posed a threat to national security, then that individual should have to prove that “it was more likely than not” that they would be subject to ill-treatment. It was held that the prohibition of torture or ill-treatment was absolute in nature. It was not possible to weigh the risk of ill-treatment against the reasons put forward for the expulsion in order to determine whether the responsibility of the State was engaged under Article 3.

11. It is therefore an absolute right and not one subject to the doctrine of proportionality which is relevant to Article 8 claims.

Discussion

12. It is the unique profile of the appellant which places him at risk on return. The Secretary of State conceded before Judge Southern that upon return to Harare Airport it is reasonably likely that the appellant’s former association with the musician Thomas Mapfumo and the group known as the Bhundu Boys will be known by those monitoring arrivals from the United Kingdom.

13. The relevant case when considering risk on return at the point of entry is HS (returning asylum seekers) Zimbabwe CG [2007] UKAIT 00094. In HS the Tribunal held that:

(i) failed asylum seekers do not, as such, face a risk of being subjected, on return to Zimbabwe, to persecution or serious ill-treatment. That will be the case whether the return is voluntary or involuntary, escorted or not.

(ii) Re-affirmed that the findings in respect of risk categories in SM and Others (MDC – Internal flight – risk categories) Zimbabwe CG [2005] UKIAT 00100, as adopted, affirmed and supplemented in AA (Risk for involuntary returnees) Zimbabwe CG [2006] UKAIT 00061. The Tribunal also identified one further risk category, being those seen to be active in association with human rights or civil society organisations where evidence suggests that the particular organisation has been identified by the authorities as a critic or opponent of the Zimbabwean regime;

(iii) Found that the process of screening returning passengers is an intelligence led process and 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;

(iv) Adopted and reaffirmed the findings in AA (Risk for involuntary returnees) Zimbabwe CG [2006] UKAIT 00061 in respect of the general absence of real risk associated with any monitoring of returnees that might take place after such persons have passed through the airport and returned to their home area or re-established themselves in a new area;

(v) Found that country conditions have continued to deteriorate but are not generally such as to bring about an infringement of Convention rights for returnees or to require the grant of humanitarian protection.

14. It is not disputed before me that there is a two stage process at the airport. The first is an interview to establish whether the deportee is of any interest to the CIO which there will be if questioning reveals they have a political profile considered adverse to the Zimbabwe government. Further interrogation may occur away from the airport at the relevant branch of the CIO. It is this second stage interrogation away from the airport which carries with it a real risk of serious mistreatment sufficient to constitute a breach of Article 3 – see AA (Risk for involuntary returnees) Zimbabwe CG [2006] UKAIT 00061 at paragraph 251. This is not disputed before me.

15. The reason the appellant will be of interest arises from the fact he played in two bands, the Bhundu Boys and the Thomas Mapfumo Black’s Unlimited Band. This is not disputed before me and Mr Hodgetts provided a reference to a clip placed on U-Tube showing the appellant playing bass guitar at a concert by Thomas Mapfumo in the United Kingdom on 24th May 2013. The clip was uploaded on the 30th May 2013 and shows his presence and name clearly displayed on the title page of the video.

16. Mr McGirr submitted the reason the Secretary of State opposes the appeal, despite the concession, was because there was no evidence the appellant was at risk on return as his involvement with the band and Thomas Mapfumo had been a number of years ago. This may be the case but the U-Tube clip shows recent activity and the expert report, to which I shall refer below and which was available prior to the hearing, shows the risk remains. However dated activities may be it is how an individual will be viewed in the eyes of a potential persecution which is the relevant consideration.

17. Thomas Mapfumo is a famous politically orientated musician from Zimbabwe who has been highly critical of the regime of Robert Mugabe as a result of which he was forced into exile in 2005, in the USA, and has not returned to Zimbabwe since. There is country material showing individuals in Zimbabwe being warned not to play his music as it was alleged it could incite violence against the government. An album ‘Corruption’ was critical of Robert Mugabe on which the appellant played.

18. The expert report of Dr Kibble dated 28th May 2013 sets out in detail the political developments in Zimbabwe and the perception of the authorities to the music of the bands in question. At paragraph 56 it is stated:

“High profile music performers such as the Bhundu Boys, and even more, Thomas Mapfumo and his associates, have long been perceived as oppositional to ZANU (PF), and have been subjected to both formal and informal processes of exclusion, vilification and threats. One can note here that Mr Kavhai played on the album ‘Corruption’ which marked the breakdown of the formally close relationship between Mapfumo and ZANU-PF. Stewart continues ‘It is inconceivable that someone with the stature of Mr Kavhai will not be perceived as having the associations of the Bhundu Boys and Mapfumo with ‘opposition politics’ and anti-ZANU statements and songs.”

19. The report refer to the date of elections in Zimbabwe having to be announced by the end of June 2013 and violence associated with such periods which is not contested before me.

20. I find the appellant has substantiated his claim that he will be identified by the CIO when studying the passenger manifest. It is conceded that his association with the bands in question will also be known which will result in not only initially questioning but a real risk of his being taken to the CIO offices for further interrogation during which process there is a real risk he will be ill-treated in a way that engages Article 3. There is no protection from the State against such treatment as it is the security arm of the State which will be responsible for his interrogation. Even if eventually allowed to pass into Zimbabwe thereafter, I find it proved that events during the second stage interrogation process means the appeal must be allowed.

Decision

21. The First-tier Tribunal panel have been found to have materially erred in law and their decision set aside. I remake the decision as follows. This appeal is allowed.

Anonymity.

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

Signed……………………………………………….
Upper Tribunal Judge Hanson

Dated the 5th June 2013