Tribunal decisions

The decision

IAC-AH-CJ-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/00697/2016

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 17th October 2016
On 8th November 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE JUSS

Between

Miss Marjorjy [K]
(ANONYMITY DIRECTION not made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr S Muzenda (Solicitor)
For the Respondent: Ms Z Ahmed (HOPO)

DECISION AND REASONS
1. The Appellant is a female, a citizen of Zimbabwe, who was born on 21st February 1971. She appealed to the First-tier Tribunal against a decision of the Respondent dated 12th January 2016 refusing her application for refugee asylum status and for humanitarian protection on the basis that there would be no breach of the United Kingdom's obligations under the Refugee Convention and the European Convention on Human Rights.
2. The Appellant's appeal was heard by First-tier Tribunal Judge Heatherington at Birmingham Sheldon Court.
3. The Appellant's appeal relied heavily upon sur place activities in the United Kingdom and at the hearing before the judge below, the Appellant produced details of MDC meetings in the UK. The judge observed at paragraph 28 that:
"The minutes of MDC meetings are word processed and appear to have been printed at the same time using the same template. I do not find these demonstrate regular attendances by the Appellant. They may have been dated to give the impression of longstanding attendance." (Paragraph 28)
4. The judge also observed (at paragraph 30) that:
"The photographs (pages 14-39 in the Appellant's bundle) identified the Appellant has attended protests and has held banners at protests. These have the potential to demonstrate support for the MDC in the United Kingdom and that she is politically active in the United Kingdom."
5. The judge concluded from this evidence that, "taking the evidence in the round, I attach little weight to this evidence. She is an economic migrant who has cynically engaged in political activities in the United Kingdom solely to bolster her claims". The decision does not make any reference to the body of case law in relation to sur place activities, even in circumstances where such activities have been contrived by the person making a protection claim.
6. In RM (Zimbabwe) [2008] EWCA Civ 824, Sedley LJ said that, "that even opportunistic opposition sur place is capable of creating or enhancing an asylum claim" (at paragraph 7) and this was followed in TM (Zimbabwe) [2010] by Elias J at paragraph 26. Of course, such dicta must be placed in its proper context and the observation made in Danian [1999] EWCA Civ 3000 with respect to the jurisprudence in this regard deserves better recognition when it is stated that, "nothing in it should be read as giving any kind of green light to bogus asylum seekers". Even so, the rejection of sur place activity evidence in an appeal such as this without giving proper reasons for such a conclusion demonstrates an error of law.
7. At the hearing before me on 17th October 2016, Ms Z Ahmed, appearing as Senior Home Office Presenting Officer, conceded right away that the determination exhibited an error of law on account of the lack of reasoning given by the judge. This was not only in relation to the matters set out above, but also in relation to the fact that if the Appellant had produced minutes of MDC meetings, which were word processed, and appear to have been printed at the same time using the same template, this did not in itself, without the giving of any further reasons, demonstrate that such evidence was not to be relied upon, particularly given the express recognition in the photographs, given by the judge, that the Appellant has attended protests and had held banners at protests (at paragraph 30).
8. Mr Muzenda, appearing on behalf of the Appellant, explained that with respect to the key elements of the evidence before the judge, there had been no reasoning given for the conclusions. The judge had not only failed to make a finding whether the Appellant was an active member of the MDC in Zimbabwe and the United Kingdom (see paragraphs 29 to 30), but had also failed to apply the relevant country guidance law in circumstances where the Appellant had been involved at a low level with the MDC. This was important because the Appellant's home area was one where the Appellant would be required to demonstrate loyalty to ZANU-PF. The express finding that the Appellant was an "economic migrant" (paragraph 30) was uncalled for and without proper basis in reasoning and that I should make a finding on an error of law and remit the matter back to the First-tier Tribunal, to be heard by a judge other than the original judge in this case.
9. Both parties before me agreed that the proper course of action was to remit this matter back to the First-tier Tribunal.
Error of Law
10. I am satisfied that the making of the decision by the judge involved the making of an error on a point of law (see Section 12(1) of TCEA 2007) such that I should set aside the decision. My reasons are those set out above. Accordingly, under Practice Statement 7.2(b) I remake the decision by remitting the matter back to the First-tier Tribunal because the nature or extent of any judicial fact-finding which is necessary for the decision to be properly remade is such that it is appropriate to remit the case back to the First-tier Tribunal.
Notice of Decision
11. The decision of the First-tier Tribunal involved the making of an error of law such that it falls to be set aside. I set aside the decision of the original judge. I remake the decision as follows. This matter is remitted back to the First-tier Tribunal to be heard by a judge other than Judge Heatherington.
12. No anonymity direction is made.

Signed Date

Deputy Upper Tribunal Judge Juss 5th November 2016