Tribunal decisions

The decision

UPPER Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/10683/2016

THE IMMIGRATION ACTS

Heard at: Field House
On: 27 March 2017
Decision and Reasons Promulgated
On: 19 April 2017

Before
Deputy Upper Tribunal Judge Mailer

Between

Mr Mduduzi Patrick Ndlovu
no anonymity direction made
Appellant
and
secretary of state for the home department
Respondent
Representation
For the Appellant: Mr S Muzenda, Longfellow Solicitors
For the Respondent: Mr T Wilding, Senior Home Office Presenting Officer

DECISION AND REASONS
1. The appellant is a national of Zimbabwe, born on 21 September 1977. He appealed to the First-tier Tribunal against the decision of the respondent dated 14 September 2016 refusing his application for asylum.
2. His appeal was dismissed by the First-tier Tribunal Judge Spicer in a decision promulgated on 22 November 2016.
3. The Judge noted at [55] that it is accepted by the respondent that the appellant was a member of the MDC when he was in Zimbabwe between 1999 and 2001.
4. Judge Spicer 'applied the guidance in Devaseelan' and accepted the earlier findings of Adjudicator Ashmore [54]. He had lived with his uncle in Zimbabwe between 1998 and 2001. He provided a letter from the MDC dated 11 May 2004 stating that he was a member of the MDC. However, the adjudicator did not accept that he was politically involved or even interested in MDC activities.
5. He also noted that it was accepted by the respondent on the basis of a letter dated 30 August 2016 from the Secretary of the MDC London Branch that the appellant was a youth Vice Chairperson for the MDC London Branch.
6. The Judge found on the appellant's own evidence at interview and at the hearing that he was not politically active in the UK until 2016, although he did attend some meetings from 2009 onwards - [57]. He accepted that the appellant sympathises with the aims and objectives of the MDC but did not consider that he could be called an activist. On his own evidence, he did not begin to attend vigils in Zimbabwe House until 2009, eight years after his departure from Zimbabwe. Had he been politically active in Zimbabwe “….it would be expected that he would have become involved with the MDC sympathisers on his arrival in London” - [58].
7. Taking the appellant's evidence at its highest, he did not begin to attend any meetings of the MDC until 2009 and even then attended only once a month, suggesting that his political interest and involvement was low.
8. All his involvement with the MDC dates from 2016. He rejected the submission that the appellant would not have evidence of these earlier attendances as he was not seeking to gather evidence at that time. If he had been active before 2016 he would have been sent copies of minutes and other documents, including photographs which pre-dated his asylum claim [60].
9. The Judge referred to minutes for meetings of the MDC. Although he was appointed as vice chair of the Youth Committee, he did not supply evidence of his involvement in organising any events for the youth members. Photographic evidence shows his attendance at vigils, including the holding of banners and posters. Taken at its highest, the Judge found on the evidence produced, that the appellant is a sympathiser but not a political activist in the MDC cause. His involvement with the MDC in London in 2016 has been limited to attendance at meetings and vigils, and practical help with setting out chairs at meetings.
10. He noted that the appellant was born in Bulawayo although he was brought up in Chegutu. He lived in Bulawayo from 1998 to 2001. He had not given any convincing reason why he would not be able to return to Bulwayo. He is an adult male of 39. He should be able to live independently. He received financial assistance from his mother in the UK. She would assist him while he settles in Zimbabwe. He will not be at risk on return to Bulwayo, his most recent place of residence in Zimbabwe. [64]
11. There has not been any changes in the situation in Zimbabwe since CM (Zimbabwe) [2013] UKUT 0059 which would adversely affect the appellant - [63]. The Zimbabwe human rights report lists two new cases of political violence against MDC activists between 1 January and 30 September 2016.
12. The fact that the appellant did not make an asylum claim at the earliest opportunity goes against the credibility of his claim [66].
13. There would be no insurmountable obstacles to his finding work and rebuilding a network of friends in Zimbabwe. The appellant does not have a significant MDC profile and will not face significant difficulties in low density or medium density areas in Harare.
The appeal before the Upper Tribunal
14. On 14 February 2017 Upper Tribunal Judge Southern granted the appellant permission to appeal. He stated that as it was accepted that the appellant had been a member of the MDC when in Zimbabwe, he had attended meetings and demonstrations in the UK and had been appointed Youth Vice Chairperson for the MDC London branch, the findings made by the Judge at [57] that the appellant had not been politically active in the UK and at paragraph [58] that “I do not accept that he could be called an activist” are not altogether easy to understand, especially in the light of the additional observations made by the Judge at [61]. That was arguably not a sound foundation for the assessment that followed.
15. Mr Wilding contended at the outset that the application for permission had been out of time by five days. The decision was sent via the Tribunal on 22 December 2016. Even taking into account the intervening holidays, the firm was closed from 23 December 2016. The office only re-opened on 9 January 2017. That did not constitute a good reason for time to be extended.
16. Mr Muzendi submitted that the application for permission to the Upper Tribunal contained an application for condonation for the late filing of the appeal. The firm closed on 23 December 2016 and re-opened on 9 January 2016. On resuming at the New Year, they noticed that the decision had been made and sent on 22 December 2016. The deadline for the appeal would have been 6 January 2016. The firm is relatively small with only two members of staff. As soon as they became aware of the decision the appellant acted swiftly to “purge his default” and his behaviour is inconsistent with a litigant who could be said to have abandoned the case.
17. Mr Muzenda also contended that Mr Wilding had 'not taken a good point'. In granting permission to appeal, Judge Southern gave reasons, including any decision on extending time. The application for an extension was before Judge Southern. In the circumstances, and in any event, it is evident that Judge Southern was aware of the lateness but nevertheless considered the application. At the very least, he implicitly extended time, albeit that there is no express reference in that regard.
18. I find submission that time had been “implicitly extended” is not persuasive. However, I find, for the reasons given by the solicitor in the application itself that the appellant acted swiftly when discovering the position. I find, having regard to the circumstances, that it would be unjust not to extend time in this case.
19. Mr Muzenda submitted that the Judge failed to engage adequately with some of the submissions raised. In particular, there were no adequate reasons given as to why he found that the appellant was not an activist in Zimbabwe seeing that it was accepted that he attended rallies there and put up posters while travelling to most events. His late uncle was a founding member of the MDC and its first treasurer. It is not evident why such involvement should not meet the description of an activist.
20. He referred to [61] of the decision. There was reference to to the appellant's support for the MDC in the UK. The Judge found that he was a sympathiser but not a political activist in the MDC cause.
21. Mr Muzenda referred to the appellant's statement of evidence at paragraph 5.5, where he stated that he had been a member of the MDC movement from 1998 to 2001 as well as a member of the Restoration of Human Rights Zimbabwe Association (UK) from 2014 to date. That was the background before the First-tier Tribunal.
22. Further, from pages 21-48 of the appellant's bundle numerous photographs of his MDC involvement including Flikr and Facebook, were provided. The photographs of such demonstrations and protests were for the period from February 2016 until the date of hearing.
23. Thus, at page 26 the appellant is shown on a photograph at the Zimbabwe Vigil. Mr Muzenda also referred to D1 and D2 of the respondent's bundle showing the appellant attending a demonstration where he is holding a banner stating that Mugabe and Zanu-PF's rogue regime should stop torture and abduction and murder. He also referred to the photographs of the appellant on Flickr at D1-DE in the respondent's bundle. This was not evidence 'of a mere sympathiser'.
24. Mr Muzenda submitted that the reference to only two cases of violence was also incorrect. That referred to totals for each area. There were not only two incidents. He referred to pages 58 and 59 of Appendix 1. This set out demonstrations from the beginning of June until September 2016. It is noted that Zimbabwe has seen a sharp increase in demonstrations. On 1 September the police banned marches and peaceful protests in Harare by issuing statutory instruments. The order was declared unconstitutional. However, it was then re-imposed on the central business district of Harare until December 2016. Activists and opposition parties continue to maintain a steady pressure on the authorities.
25. Accordingly, the appellant's involvement in the UK was shown to be consistent. He submitted that the finding that the appellant was a sympathiser and would not have difficulties if returned, 'missed the point' in HS (Returning Asylum Seekers) reported on 29 November 2007. The Judge did not deal with any risk at the airport because the appellant was treated as only a sympathiser. The appellant was an activist who would be subjected to a two-tier assessment. Mr Mundeza asserted that “at the airport activists are in trouble.” If not at the airport, they would be dealt with beyond the airport.
26. HS was reaffirmed by CM, which dealt with risk assessment beyond the airport. In EM and Others (Returnees) Zimbabwe CG [2011] UKUT 98 the Tribunal held at paragraph [266], that country guidance regarding risk at the airport continues to be set out in HS Returning asylum seekers) Zimbabwe [2007] UKAIT 00094, read with the findings on that issue in SM and Others (MDC – internal flight – risk categories) Zimbabwe CG [2005] UKIAT 00100 and AA (Rik for involuntary returnees) Zimbabwe CG [2006] UKAIT 0061.
27. He submitted that the reference by Judge Spicer at [62] to HS, related to failed asylum seekers who would not as such face a risk of being subjected to persecution or ill treatment on return. That, however, was on the basis that the returnee was not an activist. In fact the appellant was active throughout. In 2016 he attended six major demonstrations in London including having organised one himself. He was the Vice Chair of the Youth Group. This did not amount to “mere sympathy” for the MDC as stated by the Judge at [58].
28. With regard to risk on return to Bulawayo he submitted that the appellant grew up in Chegutu. His mother came to the UK in 1998. He remained with his brother for two years in Bulwayo. It was difficult because he could not speak Ndbele in Bulawayo. From CM, it is evident the area of return is critical. Chegutu is his normal home. A loyalty test is applied in most rural areas. The Judge did not address this issue.
29. With regard to his return to Harare [70] the appellant does not come from there. Moreover, he would wish to carry on with his activities there. He would not be able to survive. He does not have transferable qualifications, having only worked illegally in the UK in “retail establishments.” Accordingly, the Judge has not properly addressed the difficulties he would face. The issue moreover relates to how he would be perceived in Zimbabwe.
30. He submitted that the appellant's activities are in the public domain. They are accessible in Zimbabwean newspapers.
31. In summary, he submitted that there was nothing by way of any reasoning as to why the appellant did not have a significant MDC profile. He had a recognised office in the MDC's structures in the UK. He was the Vice Chair of Youth Culture. The Judge did refer to the minutes of the MDC which mentioned his name in connection with help in setting up the room. There were minutes of meetings which were supplied by the appellant to the respondent contained at C6 of the respondent's bundle.
32. Accordingly, there had not been a proper basis for concluding that he was a “mere sympathiser”. The decision should be set aside and remitted for a further hearing.
33. On behalf of the respondent, Mr Wilding submitted that the Judge did not materially err. The question is whether the appellant had a significant MDC profile. Looking at the determination and findings as to the appellant's involvement the Judge has dealt with this from paragraphs [58] onwards.
34. There is reference to the events in 2001 in Zimbabwe. There is reference to his MDC activities in the UK. It was found that he was peripherally involved as a sympathiser. He attended meetings and vigils and gave practical help “with setting out the chairs at meetings.” This did not amount to a high level profile of involvement.
35. With regard to internal relocation he would be returning as a failed asylum seeker without a significant MDC profile. That is what the Judge had in mind at [70] when referring to his ability to return to Harare. These are 'rational reasons which are supported'. The submission that the findings are perverse, would require an analysis that no other Tribunal would have come to.
36. He submitted that headnote 6 in EM referred to a returnee to Bulawayo who will not in general suffer the adverse attention of Zanu-PF, even if he has a significant MDC profile. Accordingly the statistical evidence relied on is misconstrued. The appellant was born in Bulawayo. He lived there between 1998 and 2001. There have been no changes to the situation in Zimbabwe since CM [65].
37. With regard to Table 2 at page 55, in respect of Bulawayo, there were two cases of political violence between January and 30 September.
38. The appellant in his witness statement did not say that he had problems working or studying as an adult in Bulawayo between 1998 and 2001. English is spoken in Zimbabwe. He also speaks Shona. It is not enough to say that he does not speak Ndbele. He did live there for two or three years. He cannot contend therefore that he would be unable to return there. Accordingly the findings with regard to Bulawayo have been properly made.
39. Mr Wilding also referred to the decision at [66] where the Judge noted that he arrived in 2001 and only claimed asylum in 2016. His appeal in 2005 as a dependant relative was dismissed. The Judge did not use the delay as a determinative factor. Clear reasons had already been given. The Judge has also given proper findings for concluding that there would not be significant difficulties with respect to internal relocation to Harare as an alternative.
40. He submitted that in any event, any criticism in respect of Harare could only succeed if every other ground of appeal succeeded. There was accordingly no material error in the circumstances.
41. iI summary it was open to the Judge to conclude that he could return to Bulawayo. Alternatively, on the basis that he was not an activist he could also return to Harare. The findings at [61] that he did not in the circumstances have a significant MDC profile and were open to the Judge.
42. In reply, Mr Muzenda submitted with regard to Bulawayo that the appellant stated in his witness statement that he found it difficult there as he did not speak Ndbele. However, his uncle was always there to help him. The language issue was the only outstanding one in CM. The Tribunal accepted that there are difficulties for a Shona because of language. Even a person sent to a rural area would be in trouble. The loyalty oath would be required to be made. Chegutu is in Matabeleland West. If returning to Harare, he would want to continue his activities.
Assessment
43. I have set out the Judge's findings in some detail. At [61] the Judge found that the appellant was a mere sympathiser and not a political activist in the MDC. There is force in Mr Wilding's contention that such categorisations are not particularly helpful. The issue is whether or not the appellant had a significant MDC profile which would potentially affect his risk on return.
44. With regard to the Judge's findings relating to the appellant's support for the MDC in the UK, he noted that at its highest, he did not begin to attend any meetings until 2009, and then only once a month, suggesting that his political interest and involvement was low. The evidence of his involvement with the MDC was found to date from 2016 [60].
45. The Judge did have regard to the minutes for meetings of the MDC London Branch dating from 2016. This mentioned the appellant's name. He was also appointed as vice chair of the Youth Committee. Moreover the Judge had regard to photographic evidence showing his attendance at vigils and holding banners and posters. The evidence was that the photographs produced were also published in Facebook as well as in newspapers circulating in Zimbabwe. The appellant's activities would accordingly be in the public domain.
46. The Judge stated that he could not be called an activist with regard to the MDC before 2001 in Zimbabwe. There he only participated in some rallies. He began to attend vigils in London eight years after his departure.
47. The evidence before the Tribunal was that he had attended meetings in the UK. He was moreover appointed Youth Vice Chairperson for the MDC London branch. He attended numerous demonstrations and vigils in which he is shown holding anti-Mugabe banners and posters.
48. The finding that the appellant was not a political activist in the MDC is not supported or substantiated by coherent reasoning. Thus, it has not been explained why his appointment as Youth Vice Chairperson for the MDC London Branch as well as his participation at meetings and demonstrations in the UK where he has been photographed, do not amount to his having a significant MDC profile in the MDC cause.
49. I agree with the observations by Upper Tribunal Judge Southern that having regard to the fact that it was accepted that the appellant had been a member of the MDC in Zimbabwe, had attended meetings and demonstrations in the UK and had been appointed to a post in the MDC London branch, the finding that he had not been politically active is not altogether easy to understand.
50. The absence of a proper justification for those findings constituted a material error. I accordingly set the decision aside.
51. Mr Muzenda submitted that in the circumstances the decision should be remitted to the First-tier Tribunal.
52. Having regard to the extent of fact finding involved, I find that this is an appropriate case to be remitted to the First-tier Tribunal for a fresh decision.
Notice of Decision
The decision of the First-tier Tribunal involved the making of an error of law and the decision is set aside.
The appeal is remitted to the First-tier Tribunal for a fresh decision to be made before another Judge.
No anonymity direction is made.

Signed Date 13 April 2017
Deputy Upper Tribunal Judge C R Mailer