Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2024-005666

First-tier Tribunal No: HU/57893/2022
LH/03035/2023

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On 3rd of June 2025

Before

DEPUTY UPPER TRIBUNAL JUDGE MERRIGAN

Between

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

LS
(ANONYMITY ORDER MADE)
Respondent

Representation:
For the Appellant: Ms S Lecointe, Senior Home Office Presenting Officer
For the Respondent: Mr M Azmi, Counsel instructed by Solomon Solicitors

Heard at Field House on 11 February 2025

Order Regarding Anonymity

Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, the respondent 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. I have decided to maintain the anonymity order originally made in these proceedings by the First-tier Tribunal because the underlying claim involves international protection issues in that LS states that he fears serious harm on return to Zimbabwe. In reaching this decision, I am mindful of the fundamental principle of open justice, but am satisfied, taking LS’s case at its highest for these purposes, that the potential grave risks outweigh the rights of the public to know his identity.
Introduction
2. This is an appeal by the Secretary of State. For ease of reference, I refer to the parties as they were before the First-tier Tribunal. The respondent appeals against the decision of First-tier Tribunal Judge Parkes promulgated on 23 October 2024 (“the decision”) allowing the appellant’s appeal against the respondent’s decision dated 13 October 2022 refusing his application for asylum.
3. The appellant is a citizen of Zimbabwe. He was born in 1980. He arrived in the UK in August 2005. He did not apply for asylum until July 2008; that application was refused a month later. He appealed that refusal: which appeal came before Immigration Judge Buchanan and was refused by him. The applicant then applied for that decision to be reconsidered by the Upper Tribunal: this was refused in December 2008. Since then, the appellant has lodged further submissions. He also submitted a statelessness application in December 2015, refused on March 2016; and a further claim in July 2018, refused in December 2018.
4. Judge Buchanan made a number of findings which are relevant to the appeal before us. He was told that the appellant had joined the Movement for Democratic Change (“MDC”) while in the UK in December 2007; and that the appellant had stated, when interviewed, that he had attended two of its branch meetings. The appellant had not joined the MDC while living in Zimbabwe. Judge Buchanan was also told that the appellant had attended a vigil outside the Zimbabwe embassy in London. A letter from the relevant MDC branch chairman stated that the appellant had attended “some meetings” and been involved in fund-raising activities. Judge Buchanan placed little weight on that letter; but he did find that the appellant had attended the two meetings and the vigil. Judge Buchanan’s findings at paragraph 28 of his decision were as follows.
“However, none of this indicates that he is more than a rank and file member of the MDC at the very lowest level. There is nothing to suggest that the CIO [Zimbabwe Central Intelligence Agency] would have any interest in him at all. He was not a committee member and had not been active in recruiting members or in any actual activities for the MDC in this country. Indeed, I find that for him to have joined the MDC as late as December 2007 was in fact more a device for him to have greater credibility when or if he made an asylum claim, and I further find that he only actually made an asylum claim when his illegal employment had been discovered and found that he might be at risk of being deported.”
5. When the matter came before Judge Parkes, the appellant made clear that he was not pursuing a human rights claim: the appeal was to be considered only on the basis of protection issues [9]. It was accepted by the respondent that the appellant had joined the Citizens’ Coalition for Change (“CCC”), a successor organisation to the MDC, in August 2022; and that the appellant was a vice-treasurer of his local branch. The appellant also relied upon other activities, which I will consider below. Judge Parkes references Judge Buchanan’s decision at [10], [15], [17] and [22] of his own decision, finding at [22] that the appellant’s recent activities justified departing from Judge Buchanan’s decision.
Grounds of Appeal
6. The appellant’s grounds of appeal are dated 1 November 2024. Permission to appeal on all grounds was granted by First-tier Tribunal Judge Mulready on 2 December 2024.
7. The grounds effectively fall into two headings.
a. The judge departed from the findings in CM (EM country guidance; disclosure) Zimbabwe CG [2013] UKUT 00059 (IAC) without making reference to them.
b. The judge failed to give adequate reasons as to why he departed from Judge Buchanan’s decision in the light of the appellant’s membership of the CCC.
Hearing and submissions
8. I had before me a bundle containing all documents relied upon by the parties, it being agreed that an earlier bundle supplied by the respondent was defective.
9. Ms Lecointe for the respondent argues that the starting point is Judge Buchanan’s decision, the guidance in Devaseelan (Second Appeals – ECHR – Extra-Territorial Effect) Sri Lanka [2002] UKIAT 702 applying. While the judge referenced Devaseelan, there are insufficient reasons to explain why the judge departed from the earlier decision.
10. Ms Lecointe draws my attention to paragraph 3(5) of the headnote of CM, which states that:
“Whilst the socio-economic situation in high-density areas is more challenging, in general a person without ZANU-PF connections will not face significant problems there (including a “loyalty test”), unless he or she has a significant MDC profile, which might cause him or her to feature on a list of those targeted for harassment…”
11. She argues that the judge has not provided reasons to justify finding why the appellant now has a political profile that would place him on a list that would be targeted for harassment. She further argues that, just as Judge Buchanan found that the appellant’s joining the MDC was self-serving, so is his joining the CCC; and his position as vice-treasurer only serves as an attempt to bolster his claim.
12. Mr Azmi, for the appellant, argues that the judge did identify the relevance of Devaseelan and did make several references to Judge Buchanan’s decision. He concedes that the judge’s reasons are brief; but relies on the principle set out in Shizad (sufficiency of reasons: set aside) [2013] UKUT 85 (IAC) that reasons do not need to be extensive if the decision as a whole makes sense. He also relies upon Volpi v Volpi [2022] EWCA Civ 464 for the principle that the approach this court should take is not a reconsideration of the evidence, but to determine whether the judge’s conclusion was rationally supportable.
13. Mr Azmi also invites me, where the judge refers to the appellant’s “recent activities” at [22], to look more widely at the other activities beyond the appellant’s CCC membership that are relied upon. He refers me to paragraphs 33 to 64 of the appellant’s statement dated 20 March 2023 which, among other matters, states that the appellant attended CCC meetings. Minutes of those meetings are exhibited to this statement. I note that at paragraph 38 there is reference to a website page which lists the appellant as having been one of a number of speakers at a protest held in early 2023. That statement also relies social media material posted both by the appellant both on his personal accounts and the CCC branch’s accounts.
14. The appellant also relies upon material not before the judge, per his application notice pursuant to Rule 15(2A) of the Tribunal (Upper Tribunal) Rules 2008 dated 5 February 2025. I have considered that extra material, which comprises further news articles and reports; Twitter posts critical of the Zimbabwean government; a CCC branch Facebook post displaying the name and image of the appellant at a remote CCC branch meeting; and two further minutes of CCC branch meetings attended by the appellant.
15. Considering the first issue raised by the grounds, the failure to give reasons for departing from CM, I note that the judge states at [20] that “There is not an up-to-date CPIN or US State Department report available or a more formal report from Amnesty International, Human Rights Watch or a Danish fact-finding mission”. Mr Azmi observes that CM was 12 years old by the time this matter came before the judge; and the judge’s comments in [20] should be taken as an expression of his considering all the available guidance in the round and finding that guidance out-of-date. The judge instead relies at [19] upon three articles written in 2024: relating to refusal of bail of the CCC leader, and the arrest of CCC members. The judge continues at [20]:
“However, the Zimbabwean government has a history of ill-treating political opponents and monitoring the activities of opposition groups outside the country even going to the lengths of infiltrating opposition groups to gather information. This was undoubtedly the case with the MDC in years gone by.”
16. CM considers a range of factors, particularly as regards the location within Zimbabwe that a claimant would return to, that would determine the likely risk to the claimant on returning to that location. Moreover, the headnote of CM at paragraph 3(1) is clear that the level of risk may vary over time: “As a general matter, there is significantly less politically motivated violence in Zimbabwe, compared with the situation considered by the AIT in RN”, (RN being a 2008 decision). The judge’s reasons at [20] do not engage with this guidance, noting only in the most general terms that the Zimbabwean government has infiltrated opposition groups and oppressed their members in the past. I do find that this absence of reasons constitutes an error of law that cannot be overcome by appeal to Shizad.
17. CM is also clear that where the claimant’s credibility is at issue (and Judge Buchanan’s decision at paragraph 31 does consider matters adversely affecting the appellant’s credibility), the claimant may not be able to make out their claim in any event. Judge Parkes is right to observe at [22] that the question is not the bona fides of the appellant’s actions, but whether they draw adverse attention to the appellant. However, having noted at [11] that Judge Buchanan considered the appellant’s use of false identity papers undermined his credibility, Judge Parkes has not gone on to consider the impact of the appellant’s credibility being thus undermined.
18. More fundamental however is the second issue raised in the grounds: that the judge failed to give adequate reasons as to why he departed from Judge Buchanan’s decision in the light of the appellant’s membership of the CCC. Judge Buchanan decided as follows.
“It is quite apparent from the appellant’s evidence that he had come to this country to find employment.” (Paragraph 26)
“…I do accept the appellant’s evidence that he had attended two meetings of the MDC since December 2007 and had also been amongst others to have attended a vigil outside the Zimbabwe embassy in London.” (Paragraph 27)
“However, none of this indicates that he is more than a rank and file member of the MDC at the very lowest level. There is nothing to suggest the CIO would have any interest in him at all. He was not a committee member and had not been active in recruiting members or in any activities for the MDC in this country. Indeed, I find that for him to have joined the MDC as late as December 2007 was in fact more a device for him to have greater credibility when or if he made an asylum claim when his illegal employment had been discovered and found that he might be at risk in any event of being deported.” (Paragraph 28)
19. I have already said that Judge Buchanan raised the appellant’s credibility. At paragraph 31 of his decision he wrote:
“I have taken into account the appellant’s acts in obtaining fake identity papers and failing to make an asylum claim on arrival in this country and clearly this should have been taken into account as adversely affecting his credibility under section 8 of the 2004 Act. However even if this does undermine his credibility, the fact is that the appellant’s claim of having attended two MDC meetings, which I find to be perfectly credible, will not in itself being him into a category in which he would face any real risk if now returned to Zimbabwe. On that basis this appeal should be dismissed.
20. Before Judge Parkes, it was common ground that the appellant had joined the CCC only in August 2022. As to the timing of his joining, it is to be noted that the appellant’s most recent submissions were refused in October 2022 and his appeal in respect of the respondent’s decision was made in the same month. The appellant’s statement dated 1 October 2021, in support of his request that the respondent exercise discretion and grant him leave to remain, does not mention his political activity at all. The appellant’s statements dated 20 March 2023 and 6 June 2024 in respect of his asylum and human rights appeal do not describe any political activity engaged in by the appellant since Judge Buchanan’s decision and prior to 2022. It is unclear what political activity of his, if any, took place in the intervening years.
21. The judge found as follows at [21] to [22].
“It is only recently that the Appellant has joined the CCC and taken on the role of assistant treasurer. Given the Appellant's lack of active participation in the MDC over many years I am not satisfied that this is a genuine expression of the Appellant's political beliefs or concerns and the timing of his joining and becoming active appears to be to support his efforts to remain in the UK.
However, the bona fides of an Appellant's actions are not the test so far as the danger they may create are concerned. In that regard it is way the actions are perceived and the adverse interest that may arouse in the authorities in Zimbabwe that is the relevant test. I bear in mind the lower standard that applies to the assessment of risk in this area and, having regard to the evidence above, I find that the Appellant's recent activities justify departing from the previous decision of Judge Buchanan, the Appellant's activities would put him at risk of ill-treatment contrary to the refugee convention on account of his perceived political opinion.”
22. These brief reasons do not support the conclusion reached by the judge. Judge Buchanan considered that the appellant’s joining the MDC was a device to assist with his claim. Judge Parkes appears to have taken the same view of the appellant’s having joined the CCC. The question then becomes why, if the appellant is not genuinely politically motivated, he would not simply delete his social media accounts and request that the CCC delete him from their accounts and website. The judge did not address this question. In the light of Judge Buchanan’s observations of the appellant’s credibility, this is especially problematic.
23. Nor does the judge assess the level of interest that the appellant’s activities, taken at their height, would rouse in the Zimbabwean authorities. The decision does not set out which “recent activities” the judge had in mind at [22] when relying on those activities to depart from Judge Buchanan’s decision; though it seems from [21] that uppermost in the judge’s mind was the appellant’s engagement in the CCC. I have already quoted Judge Buchanan determination at paragraph 28 of his decision that the appellant was not a committee member, and had not been active in recruiting members or any activities. As Judge Parkes found that the appellant was a vice-treasurer, it is necessary to consider whether that committee role in itself provided adequate reason to depart from Judge Buchanan’s decision.
24. The appellant provided Judge Parkes with five minutes of CCC branch meetings in which it is recorded that he attended. Three of those minutes do not record the appellant as having taken any active part. At the remaining meetings, the appellant, described as the ‘acting vice treasurer’ or ‘acting treasurer’, provided a financial update and asked for donations. On neither occasion did the bank balance he presented exceed £500. Included in his Rule 15(2A) material are the minutes of two further CCC branch meetings the appellant attended after the decision, in only one of which he is recorded as having played an active part.
25. The judge has not provided justification as to why the appellant’s status as a branch vice treasurer, and the limited role it has given him in branch business, should in itself justify departing from Judge Buchanan’s decision that the appellant is no more than a rank and file member. It is unclear to me what, given the apparently recent and modest contribution the appellant has made to his CCC branch, what that justification could have been. Nor has the judge specified which are the other “recent activities” that he had in mind at [22] (assuming they go beyond the appellant’s role as assistant treasurer) and, if so, why those other activities should justify departure from Judge Buchanan’s decision. Plainly this constitutes an error of law.
Notice of Decision
1. The decision of the First-tier Tribunal involved the making of errors of law and is set aside.
2. In particular, paragraph [22] of the Decision set aside.
3. The matter is remitted to the First-tier Tribunal to be heard by a different judge to decide the sole issue of whether the appellant’s political activities after the decision of Judge Buchanan justify departing from that decision.

D. Merrigan

Deputy Judge of the Upper Tribunal
Immigration and Asylum Chamber

22 May 2025