Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2024-004509

First-tier Tribunal No: PA/00765/2022

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On 18th of March 2025

Before

UPPER TRIBUNAL JUDGE REEDS

Between

D Z
(ANONYMITY ORDER MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr Acharya, Solicitor Advocate instructed on behalf of the appellant
For the Respondent: Ms Z. Young, Senior Presenting Officer

Heard on 19 February 2025

Order Regarding Anonymity

Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, the appellant is granted anonymity.

No-one shall publish or reveal any information, including the name or address of the appellant, likely to lead members of the public to identify the appellant. Failure to comply with this order could amount to a contempt of court.

DECISION AND REASONS
1. The appellant appeals, with permission, against the determination of the First-tier Tribunal (Judge Monaghan) promulgated on 1 August 2024. By its decision, the Tribunal dismissed the appellant’s appeal on all grounds against the Secretary of State’s decision dated 25 June 2021 to refuse her protection and human rights claim.
2. The FtTJ did make an anonymity order, and no grounds were submitted during the hearing for such an order to be discharged. Anonymity is granted because the facts of the appeal involve a protection claim and that her rights protected under Article 8 outweigh the right of the public to know her identity as a party to these proceedings, the latter being protected by Article 10 of the ECHR. The anonymity order is detailed above.
The background:
3. The factual background can be briefly summarised as follows. The appellant is a national of Zimbabwe. The appellant arrived in the United Kingdom on 27 August 2017, having made an application for a visit visa on 22 August 2017 to attend her brother-in-law’s funeral. The appellant was married, but shortly before she left Zimbabwe she separated from her partner. She has 2 children who remain in Zimbabwe and living with her aunt. She has another sister, brother and her aunt in Zimbabwe. The appellant has family in the UK.
4. The appellant claimed that she only intended to remain in United Kingdom for a funeral for 2 weeks and that she would return to Zimbabwe. However she overstayed her visa and claimed asylum on 1 March 2019.
5. The appellant claimed to be a youth activist for MDC Alliance in Zimbabwe. She claimed to have hosted rallies at her home for people in the community for the opposition party.
6. The appellant claimed to have taken part in activities in the UK by attending demonstrations and attending vigils. It was stated that whilst she was in the United Kingdom on 15 January 2019, soldiers attacked her family home because they knew that the appellant was in the UK promoting the MDC. The appellant therefore claimed that on return she would be killed by the authorities because of her affiliation with the MDC.
7. The respondent refused the claim in a decision taken on 25 June 2021 which led to the appeal before the FtT in 2024. Whilst the respondent accepted her nationality, and at best the appellant was once a paying supporter of the MDC ( based on subscriptions paid in 2009 – December 2012), the respondent did not accept that she was a youth activist in light of the general and vague responses in the interview (see paragraph 34). Nor did the respondent accept the claim that she would be at risk on return from the authorities and rejected her factual account of the events in 2019 based on inconsistent evidence (see paragraphs 39–41) and that she would not be at risk on return on account of activities either in Zimbabwe or in the UK.
8. In a decision promulgated on 1 August 2024, the FtTJ dismissed the appeal. The FtTJ assessed the evidence as to her political profile in Zimbabwe but concluded at paragraph 28 that due to her inconsistencies in her account of the political activities there, the vague nature of some of the evidence and the implausibility’s in her account that she had failed to substantiate that she was politically active in Zimbabwe or would be of any adverse interest in that country on account of any claimed activities. Th FtTJ found at the highest she was a paying supporter of the MDC between 2009 and December 2012 but nothing more than that. As to her activities in United Kingdom, the judge concluded that they were “very minimal” and had been of “low profile” as a “mere attendee” at best and there was insufficient evidence that she had come to the attention of the Zimbabwean authorities on account of such minimal activities” ( see paragraph 29). The FtTJ applied the most recent CG decision of CM (EM country guidance: disclosure) Zimbabwe CG [2013] UKUT 00059 (IAC) and concluded that in the light of the findings that she had made the appellant could return to her home area and that she would not face significant problems and that she did not have a significant MDC profile and that she would not face a real risk of having to demonstrate loyalty to Zanu -PF ( see paragraphs 30-32). The FtTJ also addressed her medical health claim raised under article 3 ( see paragraphs 33–44). Between paragraphs 45–52 the FtTJ addressed Article 8 of the ECHR but concluded that there were no very significant obstacles to the appellant’s integration into Zimbabwe; that there was no family life between herself and her sister other than the usual emotional ties between them and that while she had developed private life in the UK since her arrival, when applying the proportionality balance and the factual findings, the factors on the appellant’s side of the balance did not outweigh the factors weighing in the balance in favour of the respondent. The FtTJ therefore found the decision to be proportionate and lawful and dismissed the appeal on all grounds.
9. The appellant applied for permission to appeal, based on 2 grounds. The first ground submits that the FtTJ did not carry out an assessment as to whether the appellant based on her “adverse political profile” upon arrival would be suspected of supporting the MDC and therefore be subjected to a 2nd stage interrogation. The 2nd ground submitted that the FtTJ did not consider whether she would face significant harassment or discrimination as a result of the political opinion when assessing very significant obstacles and continuing a private life in Zimbabwe.
10. Permission to appeal was granted by FtTJ Taylor on 24 September 2024 for the following reasons:
“The grounds assert that the Judge erred in not considering whether the appellant holds an adverse political opinion as detailed in SM Zimbabwe and whether as a result the appellant would be subjected to a second stage interrogation upon arrival at Harare airport.
This ground discloses an arguable error of law.
The Judge made a finding in paragraph 28 of the determination that, at most the appellant was a paying supporter of the MDC, but nothing more than that.
In the case of SM the Tribunal accepted that the categories of those who might be at risk includes MDC supporters and that the risk in each case depends upon its’ own circumstances, with a distinction between low level and high level political activities not being helpful.
The Judge did not consider how the appellant’s membership of the MDC alone may impact upon the appellant being subjected to a second stage interrogation at Harare airport.
The second ground asserted is that the Judge erred in finding that the appellant would not face very significant obstacles to integration into Zimbabwe, by not considering whether the appellant would face significant harassment or discrimination upon return as a result of her political opinion as required in the Home Office’s guidance.
The assessment of the appellant’s ability to integrate into Zimbabwe does not take account of whether she would face significant harassment or discrimination as a result of her political opinion. The ground is arguable.”
The hearing before the Upper Tribunal:
11. The hearing took place on 19 February 2025. The appellant was represented by Mr Acharya and the respondent by Ms Young, Senior Presenting Officer.
12. Mr Acharya relied upon the grounds of challenge and written skeleton argument and supplemented them with his oral submissions.
13. The respondent had filed a reply to the grounds of appeal under Rule 24 of the Tribunal Procedure (Upper Tribunal) Rules 2008 on 22 January 2025. Ms Young, senior presenting officer confirmed that she relied upon that Rule 24 response save for paragraph 13. However she did submit that the country guidance decision of CM did confirm the decision in AA and also the decision of HS as relevant. Ms Young also provided her oral submissions.
14. I am grateful for the assistance given by each of the advocates when presenting their respective cases before the Tribunal. I will consider those submissions in relation to each separate ground.
Ground 1:
The submissions on behalf of the appellant:
15. Dealing with ground 1, the written grounds refer to paragraphs 12 and 13 of the FtTJ’s decision and also at paragraph 20 and 23. In the light of those findings it is submitted that the FtTJ did not consider whether the appellant has an ‘adverse political profile’ and whether, as a result, she would, upon arrival be suspected supporting the MDC and thereby be subjected to a second stage interrogation.
16. The grounds refer to paragraph 43 of SM Zimbabwe [2005] UKIAT, the Tribunal recorded, in considering the meaning of an ‘adverse political profile’ as follows: "in his submissions Mr Hiffer argued that those suspected or perceived of being associated with the opposition have included activists, campaigners, officials and election polling agents, MDC candidates for local and national government, MDC members, former MDC members, MDC supporters, those who voted or believed to have voted for the MDC and those belonging to the MDC, families of the foregoing, employees of the foregoing, those whose actions have given rise to suspicion of support for the opposition such as attending an MDC rally or wearing a T-shirt, attending a demonstration, teachers and other professionals, refusal to attend a ZANU-PF rally or chant a ZANUPF slogan or not having a ZANU-PF membership card. The Tribunal accept that these categories illustrate those who might be at risk, but each case must depend upon its own circumstances. In a number of cases the Tribunal has drawn a distinction between low level political activities. The situation in Zimbabwe is arbitrary and unpredictable and in these circumstances such a distinction is not determinative. The phrase low level activities " is sometimes used as a way of describing someone whose background and profile is such that it is thought that he would not be of interest to the authorities but someone whose political activities may have been at a low level may have become of interest to the authorities. The current position taken by the Tribunal that each case must be decided on its individual facts should be continued”.
17. The written grounds go on to state that the FtTJ had stated that the appellant’s account in relation to involvement with the MDC in Zimbabwe was reasonably consistent, that she had stated she had been a youth activist and member of the MDC since November 2017 and that she was a paying supporter of the MDC from 2009 to 2013. However the FtTJ concluded that the appellant could return to her home area (see paragraph 31).
18. It is submitted that the FtTJ had not adequately considered whether the appellant has an ‘adverse political profile’ as detailed in SM Zimbabwe . Although the FtTJ has at paragraph 31 stated that the appellant could return to her home area it is submitted that the FtTJ has not considered whether the appellant, as a result of her ‘adverse political profile’ would be initially screened upon arrival at Harare Airport and thereafter subjected to a second stage interrogation which would breach the article 3 threshold.
19. The written grounds refer to paragraph 202 of CM Zimbabwe CG [2013] UKUT 00059 it was stated as follows: 202. As we have already made clear, we are not purporting in this determination to give any new Country Guidance regarding risk at the point of return in Zimbabwe; namely, Harare Airport. The Country Guidance on that topic remains HS. Nevertheless, like any other fact-finding Tribunal we have a duty under Practice Direction 12 to follow that Country Guidance only to the extent that (inter alia) the evidence before us is the same or similar to that which was before the Tribunal in HS.'
20. The grounds also refer to HS (returning asylum seekers) Zimbabwe CG [2007] UKAIT 00094 it was stated as follows: ‘2. 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 are adopted and reaffirmed.
21. It had been submitted that the appellant would, as a result of any forced return, upon arrival at Harare Airport be subjected to an initial screening by the CIO's (paragraph 247 and 248 of AA [2006] UKAIT 00061). At paragraph 247 of AA Zimbabwe, it is stated that all those returned involuntarily to Zimbabwe will be identified as deportees as the respondent has no plans to change the method of removal. The returnee will either be escorted in which case the escort will hand the passport over to the authorities at Harare airport or if not escorted the travel document will be retained by the airline staff who will hand them over to the authorities at Harare airport.
22. At paragraph 248 of AA, it is stated that all persons identified as deportees will be diverted for questioning by CIO officers who are required to produce a report in respect of all persons who have been forcibly removed to Zimbabwe from the UK whether escorted on the plane or not. Paragraph 249 of AA states that the purpose of the initial interview is to establish whether the deportee is of any interest to the CIO officers or the security services. The deportee is of interest if the questioning reveals that the deportee has a political profile considered adverse to the regime.
23. At paragraph 250, it is stated that if such a political profile or relevant military profile is suspected, then the deportee will be taken away for interrogation and this second stage interrogation carries with it the real risk of serious mistreatment sufficient to constitute a breach of article 3 (para 251 of AA Zimbabwe).
24. It is submitted that the FtTJ had not considered whether the appellant holds an ‘adverse political profile’ as detailed in SM Zimbabwe and whether as a result the appellant would be subjected to a second stage interrogation upon arrival at Harare airport.
25. Those issues were also set out in the written skeleton argument provided for the hearing.
26. Mr Acharya’s oral submissions can be summarised as follows.
27. He identified that one of the issues in dispute set out at paragraph 6 (a) of the FtTJ’s decision was whether she would be at risk on return upon arrival at the airport and whether the appellant will be screened by the CIOS (if the same is accepted) and whether the appellant would be subjected to a 2nd stage interrogation breaching article 3.
28. In this context he referred to the finding made at paragraph 31, where the FtTJ stated that applying the country guidance to findings she found that the appellant could return to her home area of X and would not face significant problems as she does not have a significant MDC profile, and the issue was whether the FtTJ had considered risk on return at the airport.
29. Mr Acharya submitted that the decision in CM (Zimbabwe) does not deal with circumstances of return at the airport ( see paragraph 202 of CM) and the guidance is set out in HS (Zimbabwe). In essence he submitted that it was necessary to go back to earlier decisions, including AA (Zimbabwe) [2006] and paragraph 247, that the appellant would be returning involuntarily and be identified as a deportee. If the appellant’s critical profile is adverse to the regime or suspected of being so, this then gives rise to the 2nd stage interrogation.
30. Mr Acharya referred to the appellant’s “adverse political profile” by reference to SM ( Zimbabwe) at paragraph 43 which had been set out in the written grounds. He submitted that the FtTJ’s findings at paragraph 12 and 13 that she was a youth activist and that she had joined the MDC in 2009 -2013 and was accepted at one time to be in MDC supporter, and that the appellant made reference to her aunt as a leader demonstrated that those factors were sufficient to demonstrate that she had an adverse political profile as set out in SM (Zimbabwe) but that the FtTJ did not make a finding that she would be subject to a 2nd interrogation.
31. Mr Acharya referred to the rule 24 response ( paragraph 10) but that paragraph 203 of CM refers to the RN (guidance) and that given her relevant involvement in the MDC and in the UK the appellant had demonstrated her knowledge. The issue was that the judge did not make a finding about risk at the airport.
32. He further argued that the rule 24 response (paragraph 5 (b) ignored the point that an adverse critical profile was a wide definition of those who would be at risk on return. Mr Acharya accepted that each case is to be considered on its own conclusions( see paragraph 8 of the rule 24 response) but paragraphs 12 and 13 of the FtTJ’s decision demonstrated that she had an adverse political profile but there was no real finding of risk on return at the airport. There was a plausible issue of risk on arrival.
The submissions on behalf of the respondent:
33. Ms Young relied on the reply to the grounds of appeal under Rule 24 of the Tribunal Procedure (Upper Tribunal) Rules 2008 on 22 January 2025.
34. The FtTJ was aware of the issue of whether she would be at risk at Harare Airport on return due to her claimed “adverse political profile” (see decision at [6(a)]).
35. With reference to the assertion by the appellant that the FtTJ had failed to consider the appellant’s claimed ‘adverse political profile’, the respondent submits that the FtTJ carefully considered her application for international protection at [12] - [32] of the FTT decision and concluded that:
a. She had been inconsistent regarding the adverse incidents she claimed happened to her in Zimbabwe,
b. Her aunt (a local MDC leader) and other relatives had not been targeted by the Zimbabwean authorities due to the appellant’s claimed political activities in the UK and at best she did not have a significant MDC profile (the FtTJ had accepted that appellant had been active for the MDC whilst in Zimbabwe before her departure).
36. It is submitted that the FtTJ had not erred when applying CM (EM country guidance; disclosure) Zimbabwe CG [2013] UKUT 59 (IAC) at [30]-[33] of the decision. At paragraph [30] of the FTT decision it quotes headnote 3(1–5) of CM. The FtTJ was entitled to find that the appellant could return to her home area and would not face significant problems due to her not having a significant MDC profile (which would have encompassed her links to her aunt in Zimbabwe).
37. Whilst the appellant submits that the FtTJ did not take into account what could happen to appellant at the airport (were her return to be enforced) and relies upon [42] of SM, TM, MH (MDC-internal flight0risk categories) Zimbabwe CG [2005] UKIAT 00100 the appellant also refers to paragraph [202] of CM which relates to the risk on return to Zimbabwe for returnees.
38. The Upper Tribunal in SM at [43] concluded that they “… accept that these categories illustrate those who might be at risk but each case must depend upon its own circumstance…” and [46] determined that the mere existence of a file on an individual held by the Zimbabwean authorities in itself did not mean that there was a risk. The UT also concluded at [46] of SM that the “… assessment of risk should focus on what has happened to the applicant and what his current profile is rather than speculation on whether he has a file and if so, what might be in it” . It is submitted that this is exactly what the FtTJ had done when assessing the evidence.
39. It is submitted that that [202] - [205] of CM should be read as a whole and taken in conjunction with the FTT findings on the appellant’s application for international protection.
40. Paragraph [203] of CM concludes that the evidence as a whole (at the time) “… reveals no case of scrutiny for loyalty at the airport”. [205] of CM also states “… To return to the position at the point of return of the airport, we are fully satisfied that the fresh evidence completely fails to disclose any change in the position as described in HS, as tending to suggest any heightened scrutiny of returnees” and that the evidence (at the time) showed there was “… no justification for regarding low level MDC supporters as the sort of activists, who the HS Tribunal thought likely to fall foul of the CIO” and “… there is no evidence to show the CIO are, for example, likely to detain at the airport and torture a person for having attended a MDC branch meeting in the United Kingdom”.
41. With further reference to CM, the UT at [202] and headnote 4 made it clear that their findings on risk on the point of return for returnees was not subject to country guidance.
42. Headnote 4(b) concluded (at the time) that “…..the available evidence as to the treatment of those who have been returned to Harare Airport since 2007 and the absence of any reliable evidence of risk there means that there is no justification for extending the scope of who might be regarded by the CIO as an MDC activist”.
43. It is submitted submits that the burden of proof was on the appellant to obtain background evidence to demonstrate that the attitude to the Zimbabwean authorities on the point of return at Harare Airport had changed since the promulgation of CM in 2013. The respondent notes that there were approximately 300 pages of background evidence available to the FtT, but the appellant had not directed to the FTT any evidence of the Zimbabwean authorities’ attitude to returnees at the point of return.
44. The FtTJ found that the appellant could return to her home area (please refer to the FtT Decision at [31]).
45. Ms Young’s oral submissions can be summarised as follows. She is submitted that whilst the grounds submit that the judge failed to address the 2nd stage of interrogation at the airport, there was no dispute that there would be an initial screening at the airport which would take place before the 2nd stage. The FtTJ had undertaken an assessment of the appellant’s political profile and had concluded at paragraph 28 that due to inconsistencies in her account of the political activities in Zimbabwe, the vague nature of some of the evidence and the implausibility’s identified that she failed to substantiate that she was politically active in Zimbabwe and was of adverse interest in that country on account of any claimed activities. At most she was a paying supporter of the MDC as accepted by the respondent but nothing more than that. She submitted that whilst Mr Acharya had relied upon paragraphs 12 and 13 they could not be read in isolation and paragraph 28 was the conclusion reached on the appellant’s political profile. The judge had adequately considered the adverse political profile which is the key point in the grounds and where the 2nd stage is engaged. Each case is considered on its own facts.
46. Ms Young relied upon paragraph 29 of the FtTJ’s decision and her conclusions as to the sur place activity which was “very minimal” and that there was insufficient evidence that had come to the attention of the Zimbabwean authorities. She submitted that paragraph 29 fed into the submission that the FtTJ had adequately considered the issue of political profile but that the FtTJ had concluded that the appellant did not have such an adverse political profile and as set out in the country guidance case of CM which in turn refers back to HS and that “each case is on its own facts” and in the appellant’s circumstances her profile as found would not mean that she would face the 2nd stage of interrogation.
47. She submitted that the FtTJ was aware of the issue ( see paragraph 6 (a) ) and notes the point that the 2nd stage of interrogation breaches the article 3 threshold therefore the judge was alive to this issue and at paragraph 28-29 the FtTJ concluded that the appellant’s profile was not such of an adverse extent to engage with the second stage of interrogation therefore did not consider this in any more detail.
48. Ms Young submitted that there was no material error of law because the findings made would not engage the 2nd stage of interrogation.
49. In his reply to Ms Young’s submissions, Mr Acharya submitted that the appellant would be suspected of having an adverse profile and the judge failed to deal with this.
50. He further submitted that paragraph 28 was inconsistent with paragraph 12 and at paragraph 28 the FtTJ did not carry out an assessment of her political profile.
Ground 2:
The submissions on behalf of the appellant:
51. Mr Acharya relied upon the written grounds and as reflected in the skeleton argument. The written grounds refer to paragraph 45 of the FtTJ’s decision. It is submitted that the FtTJ had not carried out a broad evaluative assessment of the current economic and political climate in Zimbabwe in assessing whether the appellant would face significant obstacles. The FtTJ had accepted that the appellant has given a consistent account of her involvement with the MDC in Zimbabwe and the appellant had stated that in Zimbabwe she had been a youth activist for the MDC, that they initiated rallies, carried out protest around the community, encouraged others to join and had been involved in fundraising and that the appellant has stated that her aunt was a leader in her area for the MDC.
52. It is submitted that the FtTJ has not adequately considered whether the appellant would upon return to Zimbabwe be at risk of ‘significant harassment’ as a result of her political orientation or face 'significant harassment or discrimination' as a result of her political orientation (reference is made in the grounds to the Home Office guidance) and the current socio- economic climate in Zimbabwe (for example very high levels of unemployment; current economic situation in Zimbabwe (for example, at page 229 of the appellant’s bundle, the article from www.pindula.co.zw titled ‘Zimbabwe’s Employment Rate falls to 79 per cent - Zimstat states that 68.5% of the working population less than $133 per month with 52% earning less than $33 per month).
53. In his oral submissions Mr Acharya referred to the Home Office guidance relating to private life (p407AB) and that relevant country information should be referred to. In this respect a “very significant obstacle” would be the significant harassment as a result of her political orientation. He submitted that she had been found to have a political orientation but there was no assessment that she would be subject to significant harassment. This was relevant to her being an insider and a capacity to operate on a day-to-day basis.
54. In his oral submissions he referred to the decision of NC [2023] EWCA Civ 1379 it was stated at paragraph 25 that ‘..that (i) the decision-maker (or tribunal on appeal) must reach a broad evaluative judgment on the paragraph 276ADE(l)(vi) question (see Kamara at [14]), (ii) that judgment must focus on the obstacles to integration and their significance to the appellant (see Parveen at [9]) and (iii) the test is not subjective, in the sense of being limited to the appellant's own perception of the obstacles to reintegration, but extends to all aspects of the appellant's likely situation on return including objective evidence, and requires consideration of any reasonable step that could be taken to avoid or mitigate the obstacles (see Lai at ]36]-]37[).
The submissions on behalf of the respondent:
55. Ms Young relied on the written grounds. It submitted that in terms of the assertion that the FtTJ incorrectly assessed whether there were very significant obstacles to integration due to the appellant’s political persuasion, risk of discrimination on this basis as well the economic situation in Zimbabwe, the respondent relied on the submissions relating to her political profile.
56. In addition, the respondent submits that the FtTJ had carefully assessed whether there were very significant obstacles at [45] of the decision considering the appellant’s previous employment in Zimbabwe, her transferable ones obtained in the UK, her familial, cultural and social ties to her country of origin as well as the finding that her family members could assist her to adjust. Paragraph [45] of the FTT decision is implicit reference of paragraph [14] of SSHD V Kamara [2016] EWCA Civ 813.
57. The FtTJ recognised the difficult economic situation in Zimbabwe but of course would have had in mind the UT findings in CM on this issue (please refer to the headnote 9 of CM).
58. In conclusion it is submitted that the grounds amount to nothing more than a mere disagreement with the properly constituted findings of the FtTJ. The respondent submits that that there has been no material error which has led to any unfairness in the proceedings.
59. In her oral submissions Ms Young relied upon the decision in Volpi v Volpi [2022] EWCA Civ 464 and paragraph 2 (iii) which reads as follows: An appeal court is bound, unless there is compelling reason to the contrary, to assume that the trial judge has taken the whole of the evidence into his consideration. The mere fact that a judge does not mention a specific piece of evidence does not mean that he overlooked it.
60. She submitted that it should be assumed that the trial judge took account of all the evidence before the Tribunal and the fact that the judge does not refer to a certain piece of evidence did not mean that the judge had overlooked it ( see paragraph 3 of the decision where the FtTJ set out that she had regard to the documentation contained on my HMCTS). She submitted that the judge had considered all the relevant evidence and the factors, and there was no material error of law in her decision.
61. Mr Acharya in his reply referred again to the decision of NC ( set out above) and that the judge did not focus on the obstacles to integration. The appellant would not be able to lead a private life and there was no proper assessment of whether there would be significant harassment as to her political orientation and not profile.
Analysis and discussion:
62. I have set out the respective submissions of the advocates setting out my analysis and conclusions.
63. Before undertaking an assessment of the grounds, I take into account the following matters. First, I must read the decision of the FtTJ sensibly and holistically and exercise appropriate restraint before interfering with it. Secondly, a brief decision does not mean necessarily that it is erroneous in law. Thirdly, what is required in a decision will be case specific and will depend on the nature of the issue (s) in play.
64. As regards the provision of reasons, I take into account that there is a legal duty to give a brief explanation of the conclusions of the central issue on which an appeal is determined and what is said in Shizad (sufficiency of reasons; set aside) [2013] UKUT 85 (IAC) that “reasons need not be extensive if the decision as a whole makes sense, having regard to the material accepted by the FtTJ.” I further observe that the parties are aware of the evidence that has been presented before the FtTJ, both orally and in documentary form.
65. Ms Young relied upon the decision in Volpi v Volpi ( supra) when reviewing a first instance judge's findings of fact as per Lewison LJ as follows:
"2. The approach of an appeal court to that kind of appeal is a well-trodden path. It is unnecessary to refer in detail to the many cases that have discussed it; but the following principles are well-settled:
(i)An appeal court should not interfere with the trial judge's conclusions on primary facts unless it is satisfied that he was plainly wrong.
ii) The adverb 'plainly' does not refer to the degree of confidence felt by the appeal court that it would not have reached the same conclusion as the trial judge. It does not matter, with whatever degree of certainty, that the appeal court considers that it would have reached a different conclusion. What matters is whether the decision under appeal is one that no reasonable judge could have reached.
iii) An appeal court is bound, unless there is compelling reason to the contrary, to assume that the trial judge has taken the whole of the evidence into his consideration. The mere fact that a judge does not mention a specific piece of evidence does not mean that he overlooked it.
iv) The validity of the findings of fact made by a trial judge is not aptly tested by considering whether the judgment presents a balanced account of the evidence. The trial judge must of course consider all the material evidence (although it need not all be discussed in his judgment). The weight which he gives to it is however pre-eminently a matter for him.
v) An appeal court can therefore set aside a judgment on the basis that the judge failed to give the evidence a balanced consideration only if the judge's conclusion was rationally insupportable.
vi) Reasons for judgment will always be capable of having been better expressed. An appeal court should not subject a judgment to narrow textual analysis. Nor should it be picked over or construed as though it was a piece of legislation or a contract.
66. Dealing with ground 1, it is advanced on behalf the appellant that the FtTJ materially erred in law by failing to assess whether the appellant had an adverse political profile and whether as a result she would on arrival be suspected as supporting the MDC and be subject to the 2nd stage interrogation.
67. Both parties have referred to and set out the previous country guidance decision as relevant when considering the background to ground 1.
68. In so far as it was argued by Mr Acharya that the FtTJ’s reliance on the country guidance decision in CM (Zimbabwe) (as cited earlier) was in error because it did not consider risk on return at the airport, there is no error of law in the FtTJ considering and applying the decision in CM (Zimbabwe). This is the most recent country guidance relevant to Zimbabwe and the FtTJ correctly identified this as the most recent decision, she referred to it and correctly applied to it in her decision ( see paragraph 30 of the decision).
69. The decision in CM plainly does set out the position as to risk on return at the airport and the guidance covers what happens in terms of screening at Harare airport. The Upper Tribunal in CM examined up-to-date evidence about this at paragraph 181 (d) “returnees to Zimbabwe” and specifically made findings of the risk arising from the screening procedures at Harare airport between paragraphs 202 – 205. The Upper Tribunal confirmed the country guidance decision in HS ( see paragraph 203) because it understood the findings in HS as being to the same effect as the findings it felt able to make on the further evidence in CM, that there is no scrutiny at the airport for positive indications of loyalty to Zanu-PF ( see paragraph 204) and that “low-level MDC supporters” are not the sort of activists whom the tribunal in HS thought likely to fall foul of the authorities at the airport ( see paragraph 205). The general guidance finding in CM at paragraph 211 is in line with this and both in relation to paragraph 205 and paragraph 211 is the finding that the existence of a real risk of treatment depends on an individual’s profile as an MDC supporter being significant.
70. Whilst Mr Acharya has referred the tribunal to the decision in HS, the Upper Tribunal in CM was found to be correct in its understanding of the findings made in HS. The tribunal in HS did not say any level of involvement with the MDC in the past would give rise to the risk of ill treatment at the airport. The tribunal in HS adopted and reaffirmed the finding made in the earlier case of SM and others ( MDC-internal flight-risk categories) Zimbabwe CG [2005] UKIAT 61 and AA (Risk for involuntary returnees) Zimbabwe CG [2006] UKIAT 61. As set out in SM, those deported from United Kingdom to Zimbabwe are subject to interrogation on return (see paragraph 41) and those who are suspected of being politically active with the MDC would be at real risk (see paragraph 42) but also at paragraph 43 the tribunal rejected a submission that every former member of the MDC faces a real risk of ill-treatment on return, saying instead that “each case must depend upon its own circumstances” in order to see whether background and profile of an individual’s such as to make it likely that he or she would be of interest to the authorities. The tribunal in HS did not depart from this approach, which is in line with that and the findings made by the Upper Tribunal in CM ( as affirmed in the decision of SSHD v MM (Zimbabwe) [2017] EWCA Civ 79 at paragraph 29 – 31).
71. The FtTJ properly had regard to the country guidance decision of CM in her decision at paragraph 30 and I accept the submission made on behalf of the respondent that the FtTJ was plainly aware of the issue raised, both in CM and in so far as that decision refers to risk to returnees at the airport as set out at paragraph 6 (a) of her decision and where the judge refers to being screened at the airport and as a result of an adverse political profile and whether the appellant would be subjected to the 2nd stage interrogation which would be in breach of article 3.
72. The FtTJ’s conclusions on this issue are set out between paragraphs 30 and 31 by reference to the country guidance decision in CM. The FtTJ stated :
30. In the country guidance case of CM (EM country guidance: disclosure) Zimbabwe CG [2013] UKUT 00059 (lAC) it was found as follows:
In general, a person returning to Zimbabwe from the UK who has no significant MDC profile, would not face a real risk of having to demonstrate his loyalty to ZANU PF (para 3(1)
• A person with no ZANU-PF connections who returned after a significant absence in the UK to a rural area of Zimbabwe (other than Matabeleland North or South) and is unable to demonstrate loyalty to ZANU-PF may attract adverse attention from ZANUPF or the security forces which amounts to persecution. However, the situation is not uniform across all rural areas and there may be cases where an individual’s home is in an area where ZANU-PF is weak or absent (paras 3(2) and (3)).
• In general, a person returning to rural Matabeleland North or South is highly unlikely to face significant difficulty from ZANU-PF or the security forces, even if the person is a MDC member or supporter. An exception to this is if a person can show that his home area is under the control of ZANU-PF (para 3(4)).
• In general, a person can return to a low-density or medium-density area of Harare and face no significant difficulties (para 3(5)).
• In general, a person with no ZANU-PF connections can also return to a high-density area of Harare and not face significant problems unless he has a significant MDC profile. A person with a significant MDC profile in a high-density area, may attract the adverse attention of ZANU-PF or the security forces (para 3(5)).
31. Applying the above country guidance to my findings in this case I find that the Appellant could return to her home area of x, albeit that she is from a high density area and will not face significant problems as she does not have a significant MDC profile. She would also not face a real risk of having to demonstrate loyalty to Zanu PF on return for the same reasons. The Appellant therefore does not have a well-founded fear of persecution for a Convention reason, nor does she face a real risk of serious harm.”
73. Contrary to the grounds the FtTJ did assess her political profile ( and see later assessment on this issue) and it follows from that assessment that the appellant would not be subjected to the 2nd stage interrogation as she did not have a profile which would put her at risk on the particular factual findings as found for such a second stage to take place.
74. Linked to this are the submissions made by Mr Acharya that the FtTJ failed to consider the appellant’s “adverse political profile” relying on the decision in SM at paragraph 43 ( as cited in the previous paragraphs). However it is plain from paragraph 43 that the tribunal rejected the submission that every former member of the MDC faced a real risk of ill-treatment on return saying instead that “each case must be depend on its own circumstances”.
75. In the written grounds and the oral submissions made Mr Acharya relies upon paragraphs 12 and 13 of the FtTJ’s decision in support of the claim that the FtTJ had found the appellant to be a youth activist and that she had joined the MDC in 2009 – 2013 and that this was sufficient to demonstrate that she had an adverse political profile as set out in SM. However that submission fails to consider the assessment of the evidence as a whole as undertaken by the FtTJ and the omnibus conclusions reached by the FtTJ as set out between paragraphs 28 and 29 where the FtTJ concluded that due to the inconsistencies in her account of her political activities in Zimbabwe, the vague nature of some of the evidence and the implausibility’s identified that she had failed to substantiate that she was politically active in Zimbabwe or was of adverse interest on account of any claimed activities. At best she was a paying supporter of the MDC. In respect of her political involvement in the UK, the FtTJ concluded that they were “very minimal”, and any activity was “low profile “and she had been a “mere attendee” and there was insufficient evidence that she had come to the attention of the Zimbabwean authorities on account of such minimal activities.
76. As Ms Young submitted the decision of FtTJ should be read as a whole and in accordance with findings set out between paragraphs 12 – 32 rather than by reference to isolated paragraphs of the decision.
77. As to the factual findings made by the FtTJ the appellant had claimed that she was a youth activist for the MDC in Zimbabwe and that she had been a member since 2017. In support of this the FtTJ recorded that the appellant had stated in her interview that she had sang war songs, cooked for leaders and sold party stuff and that in oral evidence that she had cooked food for people involved in rallies. The assessment made was that the appellant had been reasonably consistent with that account given, but that was not a finding at that stage about her claimed profile. At paragraph 13, the FtTJ accepted that she was at one time (historically) a paying supporter of the MDC between 2009 – 2013 (the last payment was December 2012) which was in accordance with the respondent’s decision letter and the FtTJ stated that she made a finding on that basis ( see paragraph 13).
78. As to the evidence relating to her profile, the FtTJ at paragraph 14 gave reasons why she gave little weight to a letter which purported to be from the AG secretary for legal affairs from the Department of legal affairs ( see document page 478 CE file) because the contents of the letter were vague in relation to the appellant’s activities and her role.
79. As to the factual claim of being a youth activist and her attendance at rallies (and by reference to paragraph 12 of the decision) the FtTJ set out her findings between paragraphs 15 – 16. The FtTJ took into account her claim that she held rallies outside her house every Sunday and between 50 to 70 people would attend and she would often be caught hosting them but received only threats and was not arrested. The FtTJ contrasted that with her oral evidence that she was arrested, beaten and kept overnight in the cells when she was at MDC gatherings at rallies and let go the following day as the authorities said that there was no reason to keep her. The FtTJ found that the appellant’s evidence was inconsistent with the evidence in her substantive interview where she stated she was not arrested. The FtTJ also identified a 2nd inconsistency in the appellant’s evidence; that she said in oral evidence she would run away and go to friends’ houses in the community and the authorities would not know where she was but that was inconsistent with her stating an interview that she was threatened and not arrested. The FtTJ therefore concluded that the appellant had been inconsistent about her treatment by the authorities in Zimbabwe after she claimed to have held rallies at and outside her home.
80. At paragraph 16 the FtTJ identified further inconsistencies in her account relating to the extent of the political activities and the interest shown in her by the authorities.
81. The FtTJ also addressed the claim made that in January 2019 (whilst she was in the UK and 2 years after she had left Zimbabwe) that she realised she was of adverse interest to the authorities where she claimed soldiers had broken into the family home and that the soldiers had said that they knew what she was doing in the UK, that is, promoting the MDC. The FtTJ in her assessment of this evidence considered the extent and nature of the sur place activity in the UK between paragraphs 17 – 20. The factual claim made by the appellant was summarised at paragraph 17 and the FtTJ went on to assess the evidence provided in support of that factual claim. As to the photographs (paragraphs 18 –19) the FtTJ assessed that evidence noting that she was 1 of 3 women carrying a banner in a public street but due to the camera angle it was not possible to read the slogan (p21) that there was nothing in the background of the photo to indicate where or when it was taken, the photo at page 22 appeared to show the appellant at the very back of the group of people not holding any banners or placards and not taking part in any chanting or addressing anyone. The FtTJ assessed other photographs within that paragraph and also noted that there was an individual in front of the appellant in the small gathering who appeared to be filmed however the appellant is standing at the back and is “highly unlikely to be within camera shot”.
82. At paragraph 19 the FtTJ found that other than the appellant’s own evidence and the photographs, there was no other supporting evidence that the appellant had taken part in sur place activities in either of the 2 cities named. The photographs did not indicate where they were taken and there was no supporting evidence from anyone who was present at the vigils or the demonstrations at the other city. The judge found that the photographs “taken as a whole do not support that the appellant was an organiser, nor that she addressed the small gatherings, nor that she held placards aloft, nor that she was interviewed or in any way sought a spotlight upon herself. She has been very vague about the date the demonstrations and vigils she has attended. She has not produced travel evidence to X such as bus or train tickets.” The FtTJ concluded that the burden was on her to substantiate that she had been involved in them and that she had not crossed that threshold.
83. At paragraph 20 the FtTJ set out an alternative finding that if she was in error in the findings above, then the appellant had attended a small number of demonstrations but that she had not played a significant role in any of them and had been a “mere attendee”. The FtTJ took into account her own admission in interview where the appellant stated that she “did not do much”.
84. Against that evidential background the FtTJ undertook her fact-finding between paragraphs 21 – 27 in relation to the events in 2019 in respect of the claim that the soldiers had come to the family home and attacked her relatives because they were aware of the appellant’s activities in the UK. The FtTJ found, “ given that the appellant was very low profile and a mere attendee at the demonstrations and vigils (at the highest), it is not plausible that the soldiers would know what she was doing in X city” ( see paragraph 21). At paragraph 22 the FtTJ found that the appellant had been inconsistent in her account as to when she realised in the UK that she was of adverse interest in the authorities. The FtTJ set out her evidence that she said she realised she could not go back to Zimbabwe only after the incident on 15 January 2019 and put that forward as a reason for not claiming asylum before that time, however the FtTJ set out that the appellant had stated that the authorities were looking for her when she left Zimbabwe. The FtTJ concluded “if that was indeed the case then there is little if any reason why she did not claim asylum on arrival in the United Kingdom. “ The FtTJ made a finding that that was as adverse to her credibility.
85. In the factual findings made the FtTJ did not accept the account given by the appellant that the soldiers attacked the family house because they were targeting the appellant nor that it was a plausible that they had asked about the appellant ( see paragraph 24). At its highest and based upon a letter from her aunt, the FtTJ considered that soldiers were trying to contain or stop MDC rallies taking place that day in the area and had followed 2 individuals who might have been involved. They had targeted the aunt as she was a local leader. The FtTJ observed that she placed adverse weight on the fact that whilst the appellant said they targeted the house because they knew about her activities, her aunt did not say this was mentioned by them. At paragraph 26 the FtTJ considered the appellant’s account that after the incident the soldiers continue to visit the aunt’s house and the children were being bullied and that this was evidence of continuing interest in the appellant. The FtTJ rejected this evidence as showing any ongoing interest in the appellant but that it showed that visits taking place were concerned with stopping MDC meetings taking place.
86. The FtTJ then set out her omnibus conclusions between paragraphs 28 and 29.
“28. Due to the inconsistencies in the Appellant’s account of her political activities in Zimbabwe, the vague nature of some of her evidence as set out and the implausibility’s identified, I find that she has failed to substantiate that she was politically active in Zimbabwe or is of adverse interest in that country on account of any claimed activities. At the most she was a paying supporter of the MDC as accepted by the Respondent, but nothing more than that.
29. In relation to the United Kingdom, I find that the Appellant’s political involvement in sur place activities has been very minimal; a matter which she herself seems to accept and that any activity she has undertaken has been very low profile. She has been a mere attendee at best and there is insufficient evidence that she has come to the attention of the Zimbabwean Authorities on account of such minimal activities”.
87. Those conclusions summarised between paragraphs 28 – 29 are made on the basis of the factual findings when read together. They demonstrate that the FtTJ properly considered the evidence and that whilst at paragraph 12 the judge set out that the appellant given consistent evidence about that part of the claim or her account when the judge considered the evidence together and against the other adverse findings made, the FtTJ reached the conclusion that she failed to substantiate that she was politically active as a youth activist or that any activities in Zimbabwe or in the UK had brought to the adverse attention of the authorities. At its highest, the FtTJ found that she had been a paying member of the MDC but that was the extent of her involvement.
88. The written grounds and oral submissions made on behalf of the appellant had relied upon paragraphs 12 and 13 but as set out above should not be read in isolation and do not accurately set out the factual assessment of the appellant’s profile as undertaken by the FtTJ. After the submissions made by Ms Young which highlighted paragraphs 28 and 29, it was submitted on behalf of the appellant that the FtTJ had made inconsistent findings when read in light of paragraph 12. However the written grounds do not seek to challenge the factual findings of the FtTJ nor do the grounds assert that the judge made any inconsistent findings of fact. Even if that had been raised for the reasons set out above paragraphs 12 and 13 are required to be read alongside the other factual findings and not in isolation which ultimately led to the omnibus findings set out at paragraphs 28 and 29.
89. Returning to the first ground, the factual findings made by the FtTJ were findings which were reasonably open to the FtTJ to make on the evidence and it is not been demonstrated that the FtTJ erred in law in her assessment of risk on return. The FtTJ correctly applied the country guidance decision in CM and found that she was not someone who had a profile which would be likely to bring her to the attention of the authorities either based on her activities in Zimbabwe or in the UK. The fact that the FtTJ had found that she had been a paying supporter of the MDC between 2009 – 2013 was not sufficient to demonstrate that she would be of interest to the CIO to undertake a 2nd stage interrogation. In essence her profile was not such of an adverse extent to engage the 2nd stage interrogation. This is consistent with the decision cited by Mr Acharya in HS, and that the process of screening returning passengers is an intelligence led process by the CIO in whom there is any possible interest (see headnote 3) and the decision refers to the large numbers of passengers passing through the airport ( see para 266). As set out above, the UT in HS did not say that any level of involvement with the MDC in the past would give rise to ill treatment at the airport and made it clear that each case depended on its facts and on the facts as found it was open to the FtTJ to reach the conclusion that she had not demonstrated that she would be at risk on return to Zimbabwe, therefore the 2nd stage interrogation would not be reached. There is no error of law or any material error of law in the decision reached by the FtTJ on that factual assessment.
90. Dealing with ground 2, this challenges the assessment of very significant obstacle to integration. The focus of the submissions made on behalf of the appellant is that the FtTJ failed to carry out a “broad evaluative assessment” as envisaged in the decision of SSHD v Kamara as the FtTJ did not consider the appellant’s political orientation or the economic circumstances in Zimbabwe.
91. The FtTJ’s assessment on this issue is set out principally at paragraph 45 where the FtTJ set out that she did not find that they were very significant obstacles to the appellant’s integration into Zimbabwe. The FtTJ found that the appellant still had significant family ties in Zimbabwe including her children, her aunt and uncle and her two siblings. In terms of employment, she had previously worked in Zimbabwe as a receptionist, and she had also worked in the UK as a support worker. The FtTJ concluded that “this suggests she is a skilled and flexible individual will be able to utilise the new skills and experience she has to find work in Zimbabwe of some kind, notwithstanding difficult economic conditions in her home country “. The FtTJ stated that the appellant had not persuaded her of any reason why she could not return to the house where children were and which she had described as her family home; her absence from Zimbabwe for about 7 years was not a significant period and she had retained ties with the Zimbabwean diaspora in the UK during that period and that together with her relatively short absence meant that she will be “still be enough of an insider in terms of social customs, language and society generally to be able to reintegrate”. Reference was made to her family members who would be able to assist in the process of integration and that she could retain her ties with her family members in the UK by means of visits or by means of communication. The FtTJ had earlier in her decision assessed the appellant’s medical condition under article 3 ( see findings made between paragraphs 33 – 44 which are not challenged in the grounds) and in this paragraph had stated that her health condition could be treated in Zimbabwe relying on those findings of fact.
92. There is no error of law demonstrated in the decision on the basis that the FtTJ failed to consider the economic circumstances in Zimbabwe. The FtTJ expressly considered the appellant’s past employment when living in Zimbabwe up until 2017 and also that she had worked in United Kingdom and as such was entitled to reach the finding that she was a skilled and flexible individual who would be able to utilise her skills on return, “notwithstanding the difficult economic circumstances in her country”. The FtTJ was therefore aware of the material in the appellant’s bundle concerning the economic circumstances in Zimbabwe but was entitled to consider them in the context of the appellant’s own particular circumstances and that finding was one plainly open to the judge to make.
93. As to the issue of political orientation, it was not necessary for the FtTJ to set out again her factual findings made as to the appellant’s political background or profile, as relevant to any political orientation. The FtTJ had set out her factual findings within the decision and conclusions between paragraphs 12- 29. At its highest the FtTJ accepted that she been a paying member of the MDC ( as it was in existence then ) between 2019 and 2013 the last payment being December 2012. There is no dispute that the MDC has changed since that time as indicated in the material and that the MDC-T and MDC-Alliance had split into two in January 2020. The associated finding made was that the appellant had not come to the attention of the authorities either when she was in Zimbabwe or when she was in the UK and therefore those findings when taken together do not support the basis of the submission made that she would be at risk of political harassment which would affect her integration. The FtTJ had set out that she had regard to the material before her on the electronic file (my HMCTS) ( and see paragraph 3) and in line with the decision of Volpi ( as set out above) an appeal court is bound, unless there is compelling reason to the contrary, to assume that the trial judge has taken the whole of the evidence into his consideration. The mere fact that a judge does not mention a specific piece of evidence does not mean that he or she overlooked it. The judge does not have to refer to every document in the appellant's bundle in their decision ( see HA (Iraq) v SSHD [2022] UKSC 22 at [72])the Supreme Court held at "It is well established that judicial caution and restraint is required when considering whether to set aside a decision of a specialist fact finding tribunal. In particular: They alone are the judges of the facts. Their decisions should be respected unless it is quite clear that they have misdirected themselves in law. It is probable that in understanding and applying the law in their specialist field the tribunal will have got it right. Appellate courts should not rush to find misdirection's simply because they might have reached a different conclusion on the facts or expressed themselves different. Where a relevant point is not expressly mentioned by the tribunal, the court should be slow to infer that it has not been taken into account. When it comes to the reasons given by the tribunal, the court should exercise judicial restraint and should not assume that the tribunal misdirected itself just because not every step in its reasoning is fully set out.”
94. In the light of the factual findings made there was no evidential basis for finding that she would be subjected to political harassment. In conclusion, the FtTJ carried out a careful analysis of whether there were very significant obstacles to the appellant’s integration to Zimbabwe in line with the relevant decisions and was a “broad evaluative judgement” open to her on the evidence. This is a high threshold and the FtTJ on the evidence did not find that the obstacles to return were “ very significant”. It has not been demonstrated that the FtTJ either erred in law or that any error of law was material on this issue in the light of the factual findings that the FtTJ made which were open to her based on the factual political profile as assessed by the FtTJ.
95. In conclusion and when properly analysed, the grounds of challenge are not made out and amount to no more than a disagreement with the decision. Consequently for those reasons the appellant has not established that the FtTJ’s decision involved the making of an error on a material point of law, therefore the decision shall stand.

Notice of Decision:
The decision of the First-tier Tribunal did not involve the making of a material error on a point of law; the decision of the FtTJ shall stand.

24 February 2025

Upper Tribunal Judge Reeds
Upper Tribunal Judge Reeds