Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/03251/2016

THE IMMIGRATION ACTS

Heard at Field House
Decision Promulgated
On 09 November 2016
On 16 November 2016

Before

THE HON. LORD BANNATYNE
SITTING AS A JUDGE OF THE UPPER TRIBUNAL
UPPER TRIBUNAL JUDGE CANAVAN

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

T M
(ANONYMITY DIRECTION MADE)
Respondent

Anonymity
Rule 14: The Tribunal Procedure (Upper Tribunal) Rules 2008
Anonymity was granted at an earlier stage of the proceedings because the case involves protection issues. We find that it is appropriate to continue the order. Unless and until a tribunal or court directs otherwise, the appellant is granted anonymity. No report of these proceedings shall directly or indirectly identify her or any member of her family. This direction applies both to the appellant and to the respondent.

Representation:
For the appellant: Mr S. Staunton, Senior Home Office Presenting Officer
For the respondent: Mr E. Waheed, Counsel instructed by RBM Solicitors

DECISION AND REASONS
1. For the sake of continuity we will refer to the parties as they were before the First-tier Tribunal although technically the Secretary of State is the appellant in the appeal to the Upper Tribunal.
2. The appellant appealed against the Secretary of State's decision to refuse a protection claim.
3. First-tier Tribunal Judge Anstis ("the judge") allowed the appeal in a decision promulgated on 20 September 2016. The judge set out the background to the claim, including the respondent's reasons for refusal [1-8]. He directed himself to the relevant legal framework [12-15] as well as the most recent country guidance decision in CM (EM country guidance; disclosure) [2013] UKUT 59 [17]. The judge went on to summarise the oral and documentary evidence [18-49] as well as the submissions made by both parties [50-56].
4. The judge turned to make findings on the evidence. In assessing the credibility of the appellant's account he had regard to section 8 of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 [57-58]. He made findings relating to each aspect of the appellant's account and considered what weight could be placed on the evidence produced by the appellant [59-78]. After having considered the evidence in the round he accepted the appellant's account of past events and concluded that the arrest warrant was sufficient evidence to show that the authorities were likely to have a continuing interest in her [79]. The judge went on to consider whether, in light of the decision in CM (Zimbabwe), it would be reasonable for the appellant to seek internal relocation. He said that he could not find the point outlined in the refusal letter with reference to paragraph 225 CM (Zimbabwe). He concluded that a language barrier was sufficient to conclude that relocation was not a viable option [82].
5. The respondent seeks to appeal the decision on the following grounds:
(i) The grounds set out a number of reasons why the respondent did not accept the appellant's account and asserted that the judge should have taken the respondent's position set out in the reasons for refusal letter. It was asserted that the judge failed to give adequate reasons for his credibility findings.
(ii) The judge referred to a number of shortcomings in the evidence produced by the appellant but found that they were likely to be genuine documents. It was asserted that it was not for the judge to assess whether the documents were genuine and that Tanveer Ahmed principles should have been followed.
(iii) The grounds then cited the head note from CM (Zimbabwe) without particularising any error of law in relation to it.
(iv) The grounds then cited an extract relating to internal relocation from the earlier country guidance decision in EM and others (Returnees) Zimbabwe CG [2011] UKUT 98 and asserted that the judge's findings relating to the language barrier were flawed in light of that decision.
6. First-tier Tribunal Judge Mark Davies granted permission in the following terms:
"2. It is arguable that the Judge, on concluding that the Appellant and her husband were low level members of the MDC, has wrongly assessed the risk to the Appellant on her return taking into account the country guidance case of CM & EM.
3. It is arguable that the Judge wrongly assessed the position with regard to internal relocation particularly taking into account the low political profile of the Appellant and her husband."
Decision and reasons
7. At the start of the hearing we indicated that there was an issue we wanted Mr Staunton to consider. We pointed out that the judge made a clear finding that he accepted the arrest warrant and that it created a current risk on return. The finding did not appear to be challenged in any meaningful way in the grounds of appeal. In circumstances where the risk emanated directly from the state authorities, as opposed to non-state supporters of ZANU-PF, we queried how the appeal could succeed if there was no specific challenge to the findings relating to the arrest warrant. Mr Staunton accepted that the grounds were silent on this point.
8. Mr Staunton was given time to take further instructions on the matter. When the hearing resumed no application was made to amend the grounds. He accepted that removals to Zimbabwe were "intelligence led", that it was possible that the appellant might be identified on arrival at the airport and that it caused a problem for the Secretary of State's appeal. When pressed, he accepted the appeal could not succeed.
9. We find that this concession was correctly made. The first point raised in the grounds of appeal amounted to little more than a general disagreement with the judge's findings of fact without particularising any arguable errors of law. The second point was simply confused and incorrect. It is clear that the judge's role was to weigh the evidence produced in support of the claim in order to assess whether it was reliable. He took into account the weaknesses in the evidence from the MDC pointed out by the respondent [68-70] in the context of the appellant's apparent lack of knowledge about some matters. However, he also heard evidence from the appellant and was entitled to form a view about her credibility.
10. The judge also took into account the points raised by the respondent regarding what weight could be placed on the arrest warrant [72]. He took into account those issues as part of a wider assessment of the plausibility of her account. Some matters he found weighed against her, but he gave more than adequate reasons to explain why he accepted her account on the low standard of proof [71-78]. This was consistent with the approach outlined by the Court of Appeal in Karanakaran v SSHD [2000] Imm AR 271.
11. In HS (returning asylum seekers) Zimbabwe CG [2007] UKAIT 00094 the Tribunal confirmed that the process of screening passengers returning to Harare airport is intelligence led. The authorities will be able to identify people who are of interest from the advanced passenger manifest. The grounds refer to the decision in CM (Zimbabwe) but fail to identify any material errors with reference to the country guidance. On the face of paragraph (2) of the head note cited in the grounds, those who have shown themselves "not favourably disposed to ZANU-PF are entitled to international protection." The Tribunal in CM (Zimbabwe) did not purport to give guidance on the risk on return at the airport. It confirmed that HS (Zimbabwe) remained the relevant authority on that point [202]. What evidence the Tribunal did consider related to risk to failed asylum seekers. The focus of the decision was on the risk emanating largely from non-state actors who supported ZANU-PF.
12. The facts of this case can be distinguished. The judge made a clear and unchallenged finding that he accepted the arrest warrants produced by the appellant. In such circumstances it was clearly open to him, and nothing in the country guidance decisions would oblige him to come to any different conclusion, to find that the arrest warrant was sufficient to give rise to a risk on return at the airport. If there is an outstanding arrest warrant the appellant is likely to be of adverse interest to the authorities. The risks associated with arrest and detention are sufficiently serious to give rise to a real risk of serious harm.
13. While we note that the judge's findings relating to internal relocation are likely to be flawed in light of the citation from EM (Zimbabwe) referred to in the grounds, we conclude that that the error is not material to the overall outcome of the appeal. If the judge's findings relating to risk arising from state actors are sustainable the issue of internal relocation simply doesn't arise. The particular nature of the political violence in Zimbabwe, largely arising from non-state actors who support ZANU-PF, gave rise to consideration of the issue of internal relocation in several country guidance decisions. The circumstances of this case are quite different. Having failed to undermine the First-tier Tribunal's findings relating to the arrest warrants, any criticism of the judge's findings relating to internal relocation is immaterial.
14. For the reasons given above we conclude that the First-tier Tribunal decision did not involve the making of an error on a point of law. The decision shall stand.

Decision
We find that the First-tier Tribunal decision did not involve the making of an error of law

Signed Date 14 November 2016
Upper Tribunal Judge Canavan