Tribunal decisions

The decision

IAC-AH-VP-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: PA/00548/2016
PA/00550/2016

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 19 January 2017
On 13 February 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE CHAMBERLAIN

Between

OM
TM
(anonymity direction MADE)

Appellants
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellants: Mr. S. Muzenda, Longfellow Solicitors
For the Respondent: Mr. P. Duffy, Home Office Presenting Officer

DECISION AND REASONS
1. This is an appeal by the Appellants against the decision of First-tier Tribunal Judge Thomas, promulgated on 7 October 2016, in which he dismissed the Appellants' appeals against the Respondent's decisions to refuse to grant asylum.
2. I have made an anonymity direction, continuing that made in the First-tier Tribunal.
3. Permission to appeal was granted as follows:
"It is arguable that the judge erred in finding without an adequate evidential basis that $400 was paid to change the date of the ticket. If it had been found that the appellant was able to leave Zimbabwe in 2011 only after paying a bribe, this might materially affect the outcome on risk on return. The reference at para 32 to the lack of MDC membership cards appears to refer to the period before the first appellant left Zimbabwe in 2002 and not to the membership cards issued subsequently. Nevertheless, given that permission is to be granted on the basis of the judge having arguably erred in relation to the evidence of payment of a bribe, the other grounds, even though seemingly weaker, are arguable on the basis that they are relevant to risk on return."
4. The Appellants did not attend the hearing. Mr. Muzenda apologised on their behalf and said that the wife of the first Appellant had collapsed the day before and was in hospital. They had been intending to attend.
5. I heard submissions from both representatives following which I announced that I found that the decision involved the making of a material error of law and my full reasons would follow.
Submissions
6. At the outset of the hearing I raised the issue of the $400 payment. Mr. Duffy submitted that it was clear the judge had speculated on the reason that a payment had been made. In reality, the judge was saying that he did not believe that the Appellants were at risk because they were low level members of the MDC who had not been stopped by the CIO. He submitted that, taken as a whole, it was clear what the judge was saying, but he conceded that this part of the decision relating to the payment of $400 was problematic.
7. In relation to the MDC membership cards, Mr. Muzenda submitted that the judge had stated in paragraph 32 that no membership cards had been provided. However, the MDC membership cards from Zimbabwe were in the Respondent's bundle at H1. He submitted that this was the very first ever MDC card issued in Zimbabwe in 1999. A UK membership card would not look like this. The finding in paragraph 32 that no membership cards had been produced was an error. Further, this finding that no cards had been produced would have inclined the judge to take against the Appellant for failing to provide evidence of membership.
8. He further submitted in relation to paragraph 32 that the judge had been prepared to accept that the first Appellant was chased by members of Zanu PF. There had been no documentary evidence to corroborate this claim, which was made in oral evidence. This indicated that the judge had not impugned all of the first Appellant's evidence. It was not clear why this evidence had been accepted given that there was no other supporting evidence for the claim, and given the finding in paragraph 30 that the Appellants' credibility had been damaged due to behaviour which fell within the ambit of section 8.
9. In relation to the first Appellant's travel to Zimbabwe, the judge's analysis was simplistic. The first Appellant and his wife had travelled to Zimbabwe in 2010 and 2011 on their own passports with valid leave in the United Kingdom. They would have followed the "green route", which was not for those who were being returned without valid passports. It is this group of travellers who would be taken aside.
10. He submitted that the judge was looking for an MDC profile and nothing more. However the country guidance case went wider than this, and the judge had not considered it. The socioeconomic challenge of return needed to be considered. The Appellants were HIV positive and there had been no consideration of whether medication would be affordable. There had been no consideration of whether they would be able to relocate to a low density area given the socioeconomic challenges.
11. Further as a Shona, it was accepted that it was difficult to relocate to Bulawayo. This was not a matter only of the language spoken, but was because they were of Shona ethnicity. However, the judge found in paragraph 39 that there was no evidence to show they would suffer discrimination on account of their ethnicity.
12. In relation to the second Appellant, he was a youth chairperson in the United Kingdom which was a significant profile in MDC terms. Mr. Muzenda submitted that his profile should be considered through the eyes of the persecutor in Zimbabwe, not through the eyes of somebody sitting in an office in the United Kingdom. The judge had failed to give adequate reasons for why this was not a significant MDC profile. The case of BA (Demonstrators in Britain) [2011] UKUT 00036 regarding sur place activities had not been considered at all.
Error of Law Decision
13. I will turn first to the issue of the $400. In paragraph 31 the judge states:
"The 400$ that his brother paid at the airport was to enable the First Appellant to return to the United Kingdom a day sooner than his booked flight. There is no evidence to substantiate this payment was for bribe, as opposed to the cost encountered to change a flight."
14. As accepted by Mr. Duffy, it does not appear that there was any evidence before the judge to suggest that the first Appellant had to change the date of his flight to fly home on a date earlier, such as is found by the judge in paragraph 31. It was accepted by Mr. Duffy that this was speculation on the part of the judge, and was "problematic".
15. I have considered the evidence in the bundle, in particular the evidence set out in the first Appellant's witness statement at G1. This states:
"My brother booked another ticket for my wife for the 12th of October and I then followed her back to the UK on the 16th of October after paying a total of about $400 in to the airport officials a form of bribery."
16. The judge stated that there was no evidence to substantiate the claim that the payment was for a bribe. He makes no reference to the witness statement. Rather than simply rejecting the evidence of the first Appellant, he speculates that the payment was in fact to enable the first Appellant to return to the United Kingdom a day sooner. However, there was no evidence before the judge to suggest that the Appellant had to return a day earlier than planned, and therefore that he would have incurred such a charge. There was no evidence to suggest that this money was paid in order to change a plane ticket. I find that this is pure speculation.
17. I find that this is significant. If the first Appellant had not been able to leave Zimbabwe without paying a bribe in 2011, that is relevant to his risk on return to Zimbabwe now. The judge seems to accept that a payment was made, but has failed to give reasons for rejecting the first Appellant's reasons for why the payment was made. I find that the judge has erred in rejecting the first Appellant's evidence for lack of corroboration, and in speculating on the purpose of the payment. I find that this error is material, as it goes to the issue of risk on return.
18. The judge states that the first Appellant "participated in groups and demonstrations and was among many chased by the Zanu PF" [32]. It was submitted at the hearing that this finding was made on the basis of the first Appellant's oral evidence only, and there was no corroborative evidence of this. It was not mentioned in the first Appellant's statement. Mr. Duffy did not challenge the submission that this finding had been made on the basis of oral evidence only.
19. In paragraph 30, the judge found that the Appellants' overall credibility was damaged by their behaviour in failing to claim asylum earlier, which behaviour fell within section 8(2) of the 2004 Act. I find that it is unclear why the judge accepted this uncorroborated oral evidence if she considered that the first Appellant's credibility had been damaged. She did not accept his uncorroborated claim that $400 was paid as a bribe. I find that this is an inconsistent approach to the evidence.
20. The issue of the $400 is relevant to the finding that the first Appellant and his wife had no problems when they returned to Zimbabwe in 2010 and 2011 [31]. The judge did not engage with the fact that the first Appellant and his wife had returned on valid passports with valid visas for leave to remain in the United Kingdom. He has not considered that they would not have come to the attention of the authorities on their arrival in 2010 and 2011 as they were not being returned, but were voluntarily making visits back to Zimbabwe. I find that the judge has failed to consider the circumstances in which they were arriving at the airport in 2010 and 2011.
21. In paragraph [32] the judge states:
"The First Appellant claims to have been a member of the MDC in Zimbabwe since 2000. He has not produced any evidence to substantiate this, such as a membership card, or confirmation from the MDC in Zimbabwe of that membership."
22. In the Respondent's bundle at H1 are copies of MDC membership cards from Zimbabwe. They were issued in dollars rather than pounds. The return address for the cards is in Harare. I find that the Appellant had produced MDC membership cards from Zimbabwe, and the judge failed to take this evidence into account. The finding in paragraph [32] runs contrary to the evidence which was before the judge.
23. In relation to the second Appellant and his membership of the MDC in the UK, the judge found that he was "actively involved in the MDC-T youth section in the South beds/Luton area" [40]. He then states that he is "not persuaded that his level of involvement, amounts to him having a "significant MDC profile" in the MDC in the United Kingdom or in Zimbabwe". He gives no reasons for finding that the second Appellant's profile as a youth chairperson is not significant. He does not consider how this would be seen by the CIO in Zimbabwe, but merely finds that this role is not significant. I find that the failure to give reasons for why it is not a significant profile is an error of law.
24. The judge found that the first Appellant and his wife did not suffer persecution or serious harm prior to leaving Zimbabwe in 2002, and that they had no problems when returning to Zimbabwe in 2010 and 2011. He finds that the second Appellant did not suffer persecution or serious harm prior to leaving the country in 2011. I have found above that he has erred in these findings. He then considered risk on return and relocation, but I further find that he did not properly assess this issue.
25. In dealing with risk on return, the judge finds that the Appellants would not attract the adverse attention of the authorities on arrival in Zimbabwe [38]. In paragraph [39] he states that they would not be able to return to their home village, and considers internal relocation elsewhere in Zimbabwe. He considers that the first Appellant and his wife could relocate to a low to medium density region in Harare. There is no consideration of the socioeconomic problems that they may encounter on return to these areas. He also considers that they could relocate to Bulawayo. He finds that, while they do not speak Ndebele and are of Shona origin, they speak English. He states that there is no evidence to show "they will suffer discrimination on account of their ethnicity".
26. However, this runs counter to the country guidance case of CM (EM country guidance; disclosure) Zimbabwe CG [2013] UKUT 00059(IAC). Paragraphs (7) and (8) of the headnote state:
"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."
27. Taking this into account, I find that there has been inadequate consideration of the Appellants' ability to relocate on return. I find that the judge has failed to have regard to the country guidance caselaw.
28. I have taken account of the Practice Statement dated 10 February 2010, paragraph 7.2. This contemplates that an appeal may be remitted to the First-tier Tribunal where the effect of the error has been to deprive a party before the First-tier Tribunal of a fair hearing or other opportunity for the party's case to be put to and considered by the First-tier Tribunal. Given the nature and extent of the fact-finding necessary to enable this appeal to be remade, having regard to the overriding objective, I find that it is appropriate to remit this case to the First-tier Tribunal.

Notice of decision
29. I find that the decision involves the making of a material error of law and I set the decision aside. No findings are preserved.
30. The appeal is remitted to the First-tier Tribunal to be remade.
Direction Regarding Anonymity - Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008
Unless and until a Tribunal or court directs otherwise, the Appellants are granted anonymity. No report of these proceedings shall directly or indirectly identify them or any member of their family. This direction applies both to the Appellants and to the Respondent. Failure to comply with this direction could lead to contempt of court proceedings.

Signed Date 9 February 2017

Deputy Upper Tribunal Judge Chamberlain