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Copy of AIT judgment in HS (Zimbabwe) v Secretary of State for the Home Department
(EDITOR'S NOTE: SEE POINT 279 FOR CRUCIAL PART
OF JUDGMENT)
Asylum and Immigration Tribunal Appeal Number: AA/02471/2006
THE IMMIGRATION ACTS
Heard at Field House
23rd – 26th July 2007
Determination Promulgated
On
21 November 2007
Before
Mr C. M. G. Ockelton, Deputy President of the Asylum and Immigration
Tribunal
Senior Immigration Judge Storey
Senior Immigration Judge Southern
Between
HS
Appellant
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: Mr M. Henderson, Counsel instructed by the Refugee
Legal Centre.
For the Respondent: Mr S. Kovats, Counsel instructed by the Treasury
Solicitor.
DETERMINATION AND REASONS
Introduction
and scope of reconsideration:
1. In this determination the Tribunal reconsiders the country guidance given in AA (Risk for involuntary returnees) Zimbabwe CG [2006] UKAIT 00061 in the light of the judgment of the Court of Appeal in AA (Zimbabwe) v SSHD [2007] EWCA Civ 149 and the additional evidence the parties have chosen to submit.
2. The appellant, who was born on 23rd June 1965, is a citizen of Zimbabwe. She arrived in the United Kingdom in May 2002 and was granted leave to enter as a visitor for six months. Just before that leave expired she applied unsuccessfully for leave to remain as a postgraduate (medical) doctor. She then applied for leave to remain as a highly skilled migrant. When that application was refused she claimed asylum. This was on the basis that she was at risk on return to Zimbabwe because she had attracted adverse attention from the authorities while working at a state hospital both by participating in a strike and by taking photographs of the injuries of a patient who had been attacked by government supporters and because of her father’s claimed involvement with the MDC.
3. Reconsideration has been ordered of the decision of the immigration judge who, by a determination dated 31st March 2006, allowed the appellant’s appeal against the decision of the respondent made on 13th February 2006 that the appellant should be removed from the United Kingdom after her asylum and human rights claims had been refused.
4. The immigration judge rejected as untrue the whole factual basis of the appellant’s claim to be at risk on return to Zimbabwe and, at the first stage reconsideration hearing on 1st March 2007, the appellant’s representatives did not seek to challenge those findings. The immigration judge gave clear and cogent reasons for disbelieving the appellant’s evidence. She referred, as she was bound to, to the then binding country guidance case AA (Involuntary returns to Zimbabwe) Zimbabwe [2005] UKAIT 00144 CG ( “AA(1)”) and said:
“Had it not been for the country guidance case law that binds me I would have dismissed the appellant’s appeals.”
5. At the first stage reconsideration hearing it was agreed that the immigration judge was wrong in law to allow the appeal on this basis. AA(1) was itself found by the Court of Appeal to be wrongly decided: AA and LK v SSHD [2006] EWCA Civ 401. This means that any appeal allowed solely in reliance upon it is also materially wrong in law and cannot stand. See: OM (AA(1) wrong in law) Zimbabwe CG [2006] UKAIT 00077.
6. That being the case the decision of the immigration judge to allow the appeal has been set aside and the Tribunal must substitute a fresh decision to allow or dismiss the appeal. But the Tribunal has directed, with the agreement of the parties at the first stage reconsideration hearing, that there is no reason at all to disturb the unchallenged findings of fact made by the immigration judge and set out between paragraphs 13 and 18 of her determination, the effect of which is summarised above. (The full text of the Tribunal’s decision at the first stage of this reconsideration is set out in the first annex to this determination.) This means that the appellant would be returned to Zimbabwe as a person with no profile such as to attract attention other than that, having made clear that she is unwilling to return voluntarily, she would be identifiable upon arrival at Harare airport as someone who had been forcibly removed from the United Kingdom. Although such deportees will not be identified as failed asylum seekers, the respondent accepts that they should not be expected to lie about having made a claim for asylum in the United Kingdom if asked about this on return.
7. At the commencement of the hearing before us Mr Henderson, who appeared for the appellant, sought to widen the scope of the reconsideration. This was on the basis that the appellant’s brother had appealed successfully against a decision that he should be removed from the United Kingdom as an illegal entrant after his asylum claim had been refused. His claim was based in part upon the assertion that his father had been an MDC activist well known in his area for holding MDC meetings at the family farm, something that the immigration judge who allowed this appellant’s appeal found not to be true. As that much had been accepted by the adjudicator who allowed the brother’s appeal, Mr Henderson submitted that the appellant should be allowed to reopen her claim to be at risk on return on account of the family profile of support for the MDC.
8. Mr Kovats, for the respondent, resisted this application. It was, he submitted, far too late to widen the scope of the reconsideration as directed by the Tribunal with the agreement of the parties at the earlier hearing. In any event, the fact that the appellant’s brother had persuaded an adjudicator that his father had suffered persecution on account of his activities on behalf of the MDC did not establish that the immigration judge who dismissed the appellant’s appeal was wrong to reject a similar claim made by the appellant.
9. The Asylum and
Immigration Tribunal (Procedure) Rules 2005, as amended, sets out clearly
the procedure to be adopted by a party seeking to introduce fresh evidence.
Paragraph 32 of those Rules deals with the evidence to be considered
upon reconsideration of an appeal:
Evidence on reconsideration of appeal
32. - (1) The Tribunal
may consider as evidence any note or record made by the Tribunal of
any previous hearing at which the appeal was considered.
(2) If a party wishes to ask the Tribunal to consider evidence which
was not submitted on any previous occasion when the appeal was considered,
he must file with the Tribunal and serve on the other party written
notice to that effect, which must -
(a) indicate the nature of the evidence; and
(b) explain why it was not submitted on any previous occasion.
…
10. Regard is to be had also to what is said in the Asylum and Immigration Tribunal Practice Directions:
14.1 Subject to
paragraph 14.12, where an appeal has been ordered under section 103A
to be reconsidered, then, unless and to the extent that they are directed
otherwise, the parties to the appeal should assume that the issues to
be considered at the hearing fixed for the reconsideration will be whether
the original Tribunal made a material error of law (see rule 31(2))
and, if so, whether the appeal should be allowed or dismissed, by reference
to the original Tribunal’s findings of fact and any new documentary
evidence admitted under rule 32 which it is reasonably practicable to
adduce for consideration at that hearing.
…
14A.3 A party who wishes the Tribunal on reconsideration to consider
any evidence that was not before the original Tribunal must indicate
in the notice under rule 32(2) whether the evidence is sought to be
adduced:-
(a) in connection with the issue of whether the original Tribunal made
a material error of law; or
(b) in connection with the substitution of a fresh decision to allow
or dismiss the appeal under rule 31(3), in the event of the original
Tribunal being found to have made a material error of law.
11. This was considered
by the Court of Appeal in DH (Serbia) and others v SSHD [2006] EWCA
Civ 1747:
22. As far as what has been called the second stage of a reconsideration
is concerned, the fact that it is, as I have said, conceptually a reconsideration
by the same body which made the original decision, carries with it a
number of consequences. The most important is that any body asked to
reconsider a decision on the grounds of an identified error of law will
approach its reconsideration on the basis that any factual findings
and conclusions or judgments arising from those findings which are unaffected
by the error of law need not be revisited. It is not a rehearing: Parliament
chose not to use that concept, presumably for good reasons. …
23. It follows that if there is to be any challenge to the factual findings,
or the judgments or conclusions reached on the facts which are unaffected
by the errors of law that have been identified, that will only be other
than in the most exceptional cases on the basis of new evidence or new
material as to which the usual principles as to the reception of such
evidence will apply, as envisaged in rule 32(2) of the Rules. It is
to be noted that this rule imposes the obligation on the parties to
identify the new material well before the reconsideration hearing. This
requirement is now underlined in the new Practice Direction 14A. This
sets out in some detail what is required in such a notice.
12. The appellant’s brother, whose appeal had been allowed in
March 2004, well before the date of the appellant’s appeal was
heard by the immigration judge two years later in March 2006, could
have been called to give evidence at the appellant’s appeal but
he was not. As Mr Henderson accepted, there has been no notice as required
by Rule 32. There have been two directions hearings since the first
stage reconsideration hearing but no request was made to widen the agreed
scope of the reconsideration hearing that was to follow.
13. A formal application to widen the scope of the reconsideration was made to the Tribunal for the first time only on the first day of what had been set down as a five day hearing. Mr Henderson made no such application, nor did he give any indication that he intended to, when he appeared for the appellant, instructed by the Refugee Legal Centre, at the directions hearing on 14th May 2007. At that hearing it was with the agreement of both parties that the Tribunal reaffirmed the direction that the issues before the Tribunal were to be determined on the basis of the facts as found by the immigration judge. It is now said to be a failure on the part of the appellant’s former representatives that the brother was not called to give evidence earlier, but this has not been put to them for comment as required by BT (Former solicitors’ alleged misconduct) Nepal [2004] UKIAT 00311.
14. The findings of fact made by the immigration judge are unaffected by the error of law that has led to the need for a reconsideration of this appeal. In those circumstances, following DK (Serbia), those findings ought not to be revisited.
15. There are other compelling reasons not to depart from this approach. Generally, where there is an earlier determination of a person other than the appellant in respect of which there is an overlap of the factual basis of the claim, regard should be had to that earlier determination as a starting point in the assessment of the issues resolved in that earlier determination. This is the effect of Deevaseelan [2002] UKIAT 00282, TK Georgia) [2004] UKIAT 00149 and Ocampo v SSHD [2006] EWCA Civ 1276. On the other hand it is clear from Ocampo that there is no concept of res judicata or issue estoppel in asylum appeals. But the adjudicator who allowed the appeal of the appellant’s brother did so on evidence that was significantly different from that put before the immigration judge who rejected as untrue the factual account of this appellant.
16. Since the date of the hearing the Court of Appeal has explained and followed Ocampo in AA (Somalia) & AH (Iran) v SSHD [2007] EWCA Civ 1040. This makes clear that, where there is an earlier decision relating to another person but in respect of which there is a material overlap of evidence, findings of fact upon issues common to both should not be revisited unless there is good reason to do so. The Court of Appeal’s prospective hearing of this case was referred to at a preliminary hearing in respect of this appeal that took place on 4th May 2007.as potentially having relevance to this appeal. Although this was heard by the Court of Appeal on 18th July 2007 the judgement did not become available until 25th October. We have received from the appellant’s representatives a letter dated 2nd November 2007 in which their submissions as to the effect of AA and AH are set out. We have had regard to those submissions. We considered whether we should seek further submissions from the parties in respect of AA & AH but decided not to. For the reasons that follow, this would not assist the appellant and would only serve to delay further the promulgation of this determination.
17. It is of fundamental importance to keep firmly in mind that we are concerned here not simply with an appeal but with the reconsideration of an appeal. The reconsideration is necessary because it was an error of law for the immigration judge to apply flawed country guidance to his unchallenged (at least until recently) findings of fact. Importantly, the immigration judge, in reaching those findings, had taken account of the fact that the appellant’s brother, although he had not been called to give evidence, had been recognised as a refugee: see paragraph 9 of the determination.
18. Hooper LJ, in
giving what was a dissenting judgement in AA(Somalia), set out what
was said by the Tribunal below in AA:
“… and the fact that a previous court or other decision-maker
has reached a view on facts which are in issue in the present appeal
is not of itself any evidence as to those facts. On the other hand,
in the general interests of good administration, it is probably true
to say that decisions should not be unnecessarily divergent. It is that
principle of good administration which, so far as we can see, provides
the sole basis in logic or on authority for saying that the result of
the previous litigation may be relevant in the present appeal.
What then is its relevance? It can surely only be this: that the previous
decision can be taken as establishing the issue in question unless there
is any reason not to take it as establishing that issue in question.
It has no evidential effect. It does not even give rise to a presumption.
It is simply a starting point. That is, indeed, what was decided in
TK, as we have seen. ... [T]he old decision remains, but only as long
as there is no reason for displacing it.”
19. But here, as we have explained, there are good reasons for displacing
the earlier findings. Further, we are reconsidering the decision of
the immigration judge and not hearing the appeal afresh. Carnwath LJ
said in AA (Somalia) that the applicable principles:
“… reflect the well-established principle of administrative law that “persons should be uniformly treated unless there is some valid reason to treat them differently.”
20. We heard from Mr Walker, who was the only witness called by the respondent to give oral evidence and whose evidence we consider in detail below, that the respondent does not agree with the decision of the adjudicator who allowed the brother’s appeal. He said that leave should have been sought to appeal to the IAT because that determination is materially legally flawed. But leave was not sought. The respondent’s present view of the validity of the adjudicator’s decision plays no part in our decision on the scope of the reconsideration now before us.
21. The appellant’s brother arrived in the United Kingdom as long ago as December 1997. He has not returned to Zimbabwe since then. The MDC did not come into existence until 1999, (even though the appellant claimed at her interview that her father was a member in 1998). The appellant’s brother has described becoming an active MDC supporter in the United Kingdom. He has no first hand knowledge of the activities the appellant says her father engaged in on behalf of the MDC. It is readily apparent from the evidence in and the determination of the appeal of the appellant’s brother, which the appellant has chosen to put before us as an exhibit to her brothers statement dated 25th June 2007, that an examination of that material and a comparison with the appellant’s evidence demonstrates significant contradictions and inconsistencies. These relate mainly to the chronology of events in respect of which, had they occurred, it would be reasonable to expect a consistent account to be given.
22. But it is not on this basis that we rejected Mr Henderson’s application to broaden the scope of the reconsideration as identified at the first stage of the reconsideration process, but for all the reasons set out above.
Issues
23. At the directions hearing on 14th May 2007 it was agreed that the issues to be determined are whether, on the basis of the findings of fact made by the immigration judge and set out between paragraphs 13 and 18 of the determination dated 31st March 2006, upon return to Zimbabwe: (i) the appellant faces a well founded fear of persecution for a reason recognised by the Refugee Convention; or (ii) the appellant faces a real risk of being subjected to serious harm so that she qualifies for the grant of humanitarian protection; or (iii) the appellant faces a real risk of being subjected to ill treatment such as to infringe her rights under Article 3 of ECHR.
24. The findings of fact made by the immigration judge and preserved for the purposes of reconsideration are that this appellant has no possible adverse personal profile other than as a consequence of her failed asylum claim. Thus, the two real issues to be addressed are whether the appellant would be at risk on return on account of having made an unsuccessful claim for asylum in the United Kingdom, whether her return was voluntary or involuntary and, secondly, whether the general country conditions are themselves sufficiently poor as to enable the appellant to resist removal to Zimbabwe on that account alone.
25. At a preliminary hearing on 14th May 2007 the Tribunal made an agreed direction in relation to the general issue of risk on return in the following terms:
“In terms of evidence the Tribunal takes as its starting point the record and summary of evidence as set out in the determination of the Tribunal in AA (Risk for involuntary returnees) Zimbabwe CG [2006] UKAIT 00061 (“AA(2)”), read in the light of the decision of the Court of Appeal in AA (Zimbabwe) v SSHD [2007] EWCA Civ 149.”
26. The Tribunal has made an order under section 11 of the Contempt of Court Act 1981 that prevents the disclosure of the identity of most of the sources of the material which we take into account and to which we refer in this determination. Where we refer to a witness or an organisation by name that is because they have not sought anonymity and are content to be identified.
History of the AA litigation
27. A moratorium on enforced returns to Zimbabwe in respect of all those having no right to remain, including those who had not made an asylum claim, was introduced in January 2002 after a newspaper report of ill treatment of a failed asylum seeker removed to Zimbabwe. Removals recommenced on 16th November 2004.
28. In a determination promulgated on 11th May 2005 the Tribunal assessed the evidence relating to the treatment of asylum deportees on arrival in Zimbabwe, as well as identifying risk categories for returnees to Zimbabwe in general, in SM and Others (MDC – Internal flight – risk categories) Zimbabwe CG [2005] UKIAT 00100. The Tribunal found, at paragraph 42, that:
“… returnees are regarded with contempt and suspicion on return and do face a very hostile atmosphere. This by itself does not indicate that all returnees are at real risk of persecution…”
And at paragraph 51(i) the Tribunal concluded that:
“There is no general risk for failed asylum seekers of a breach of article 3 as a result of the current hostility towards such returnees.”
29. But on 7th July 2005 the respondent suspended the involuntary return of failed asylum seekers once more after reports appeared in the press of such returnees being mistreated by the authorities in Zimbabwe and after judicial review proceedings were brought in the High Court. Those proceedings were stayed until the Tribunal gave country guidance in AA(1).
30. The appellant in AA(1) was also a person who was found to have no relevant profile on return to Zimbabwe other than that he had been refused asylum after putting forward a claim to be at risk in Zimbabwe that was found to be untruthful. Before the Tribunal he relied solely on the fact of having made an unsuccessful asylum claim. The Tribunal made clear, at paragraph 36, how it viewed such a claim:
“It will be seen at once that his argument is distinctly unattractive. This country, like any other signatory to the Refugee Convention, takes a pride in giving proper shelter to those who seek its protection having fled from persecution, or fear of persecution, elsewhere. The Appellant is not such a person. If his argument is successful, there is a risk that any Zimbabwean can obtain the protection of the Refugee Convention simply by coming to the United Kingdom and claiming asylum, even though there is no merit at all in his claim. If the Appellant’s claim is right, residence as a refugee in the United Kingdom and all the benefits, whether by standard of life, employment, social security, or health services, which such residence offers are potentially open to any Zimbabwean who could manage to get here and who is prepared to indulge in a cynical manipulation of the asylum system. No court in any country that is a party to the Refugee Convention would wish to see the Convention abused in that way.”
31. But, in allowing the appellant’s appeal, the Tribunal recognised that in assessing risk on return the appellant’s motives in making his claim were immaterial. The question to be addressed was simply whether the evidence established the existence of such a real risk. The Tribunal concluded that:
“… on the evidence before us the process by which the United Kingdom authorities enforces the involuntary return of rejected asylum seekers to Zimbabwe exposes them to a risk of ill-treatment at the hands of the CIO [Central Intelligence Organisation].”
32. The Court of Appeal allowed the respondent’s appeal against that decision: AA and LK v SSHD [2007] EWCA Civ 401. This was because the Tribunal was said to have been wrong to say that the body of evidence all went one way and wrong also to say that the respondent had not relied on any evidence that individual Zimbabwean returned failed asylum seekers had not been ill treated. The Tribunal was said also to have misapplied a concession made on behalf of the respondent as to the reason for any persecution that might occur. The Tribunal, although applying the decision of the Court of Appeal in Mbanza v SSHD [1996] Imm AR 136, upholding R v IAT ex parte Senga (unreported, 9 March 1994) upon which it regarded itself as bound, was found to have erred also in not making any finding as to whether the appellant, should he pass through the airport, would be at risk on return to his home area in Zimbabwe. The Court of Appeal explained that an appellant is not a refugee if he was able to make a safe return voluntarily even if he would be at risk if returned forcibly. This was because, in such circumstances, he was not outside his country of nationality owing to a well founded fear of persecution but because he chose not to return to it.
33. At a hearing commencing on 3rd July 2006 the Tribunal considered AA’s case afresh. Its determination was promulgated on 2nd August 2006 as AA (Risk for involuntary returnees) Zimbabwe CG [2006] UKAIT 00061 (“AA(2)”). The Tribunal had before it all the evidence that was put before the Tribunal in AA(1) and a good deal more besides. The Tribunal heard oral evidence from a country expert, Professor Terence Ranger, three witnesses who had worked at the old airport at Harare before it was replaced by a newer, larger one and two witness called by the respondent who were able to give evidence about the respondent’s policy and procedures for enforcing removals of Zimbabwean asylum seekers whose claims had failed. The Tribunal had also a large array of documentary evidence about country conditions in Zimbabwe and the evidence of a number of NGOs who may or may not be expected to be aware of whether there was systematic ill treatment of deportees from the United Kingdom.
34. The Tribunal in AA(2) carried out a detailed analysis of the evidence relating to 39 individual returnees and then set out its conclusions as follows:
“
244. A person who is returned involuntarily to Zimbabwe having made
an unsuccessful asylum claim in the United Kingdom does not face on
return a real risk of being subjected to persecution or serious ill-treatment
on that account alone. That is so whether or not the removal is escorted.
Each case must be considered on its own facts. We reaffirm the country
guidance in SM and Others (MDC – internal flight- risk categories)
CG [2005]UKIAT 00100. The evidence before us demonstrates that those
at risk upon return to Zimbabwe continue to fall into the risk categories
identified and set out in SM. This is subject to what we say about those
whose military history discloses issues that will lead to further investigation
by the security services upon return to Harare Airport and those in
respect of whom there are outstanding and unresolved criminal issues.
245. There continue to be three flights a week from the United Kingdom to Harare Airport. These are generally fully booked with ordinary travellers who pass freely and without difficulty in and out of Zimbabwe. Anyone who is indistinguishable from the ordinary traveller will not have any difficulty in passing through the airport. A person who has made an unsuccessful claim for asylum but who makes a voluntary return, with or without the assistance of an IOM reintegration package, will be indistinguishable from the ordinary traveller unless there is reason to believe that he will be identified on return as falling within one of the risk categories we have identified.
246. A person who has made an unsuccessful asylum claim and has exhausted his rights of appeal will still be able to arrange a voluntary return until he is detained for the purpose of removal. After he has been detained for removal his travel documents will be held by the airline staff even if the person being removed is co-operative and compliant.
247. All those returned involuntarily to Zimbabwe will be identified as deportees as the respondent has no plans to change the method of removal. This will mean that 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 documents will be retained by airline staff who will hand them over to the authorities at Harare Airport. Although the airline staff has discretion with regard to the travel documents, the evidence does not indicate that in any significant number of cases the deportee is allowed possession of the documents before disembarking.
248. 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 United Kingdom, whether escorted on the plane or not. There is no indication that the authorities in Zimbabwe have any means to distinguish between deportees who have made an unsuccessful asylum claim in the United Kingdom and those who have been removed simply because they have no leave to remain.
249. The purpose of the initial interview is to establish whether the deportee is of any interest to the CIO or the security services. The deportee will be of interest if questioning reveals that the deportee has a political profile considered adverse to the Zimbabwean regime. Further interrogation away from the airport may also follow if enquiries reveal aspects of a military history to be followed up such as being absent without leave or being involved in military activities outside Zimbabwe. Also, the CIO will refer to the police any issues of outstanding criminal matters such as arrest warrants. There is no evidence that the fact alone of a past criminal conviction, as opposed to an unresolved allegation of criminal activity or an outstanding arrest warrant, will give rise to such an interest. There is also no evidence that the simple fact that a returnee has in the past served in the Zimbabwean army will prevent the passage of a returnee through the airport after this first stage enquiry.
250. If such a political or relevant military profile is suspected, or if there are outstanding criminal matters to be resolved, the deportee will be taken away by the relevant branch of the CIO for interrogation. The evidence does not suggest that the CIO has any interest in manufacturing or fabricating evidence to create suspicion that is otherwise absent.
251. This second stage interrogation carries with it a real risk of serious mistreatment sufficient to constitute a breach of article 3. If the reason for suspicion is that the deportee has a political profile considered to be adverse to the Zimbabwean regime that is likely to be sufficient to give rise to a real risk of persecutory ill-treatment for a reason that is recognised by the Refugee Convention. That will not necessarily be the case where the only matter of interest is a relevant military history or outstanding criminal issues. Each case must be considered on its particular facts.
252. A deportee from the United Kingdom who, having been subjected to the first stage interview at the airport, is allowed to pass through the airport is likely to be the subject of some monitoring in his home area by the local police or the CIO. This monitoring may take the form of being required to report to the local police station for questioning or may be significantly lower key such that the subject may not even be aware of it. If nothing untoward is discovered the authorities will lose interest and the monitoring will cease. It may take some considerable time, certainly a period of months, before the monitoring ceases.
253. The objective evidence does suggest that the police and the CIO are capable of acting in a seriously abusive manner towards those they perceive to be dissident or in some way an enemy of the state but the evidence does not support the assertion that there is a real risk of persecutory ill-treatment for those who are being monitored solely because of their return from the United Kingdom.
254. The general country conditions are extremely difficult. There is some evidence that newcomers to an area, and not necessarily just newcomers from abroad, are watched and might attract some interest. That evidence does not establish a real risk that persecutory ill-treatment will follow as a result. There is no evidence of societal disapproval of those who have been abroad, whether to claim asylum or not. The returnee may or may not have a home to which he can return and relatives to whom he can turn for support. Very many Zimbabweans, perhaps most, have to deal as best they can with food shortages and other difficulties arising from the collapsed economy. Those difficulties will not generally be sufficiently severe to enable an appellant to rely upon article 3 to resist removal.
255. A failed asylum seeker can chose to return to Zimbabwe voluntarily, with or without the assistance of IOM and where he will face no real risk of harm because he will be indistinguishable from the ordinary traveller. It might be argued that a person may face a real risk of persecutory ill-treatment on an involuntary return to Zimbabwe because of what might emerge from the interview that would take place following an involuntary return but would not following a voluntary return. In those circumstances he will not be able to succeed in an asylum appeal unless he can demonstrate that a similar risk exists should he agree to return voluntarily. This was considered by the Court of Appeal in this case who said at paragraph 99 that:
“…a person who can voluntarily return in safety to the country of his nationality is not a refugee, notwithstanding that on a forced return he would be at risk. Such a person is not outside his home State owing to a well-founded fear of persecution. Neither s 84(1)(g) of the Act of 2002 nor Article 33 of the Convention can begin to demonstrate the contrary, since neither enlarges the "refugee" definition; and a safe voluntary returnee is outside the definition.”
256. The Court of Appeal did not deal with the question of whether a person who can voluntarily return in safety can rely upon article 3 to resist an involuntary return. It is not necessary, in order to decide this appeal, for us to address that either. It may be that such a person cannot succeed under article 3. He has chosen in those circumstances to expose himself to a claimed risk unnecessarily. It would be his decision to do so that would expose him to that risk and not the act of the United Kingdom in returning him compulsorily as a consequence of his refusal to return voluntarily. In any event, a refusal to exercise a voluntary return option, in the knowledge that the only alternative is a forced return, may be cogent evidence that the returnee himself is satisfied that no such real risk exists on a compulsory return.”
35. But the Court of Appeal has upheld part of the appellant’s challenge to those conclusions and has ordered reconsideration to the limited extent indicated: AA (Zimbabwe) v SSHD [2007] EWCA Civ 149.
36. The Court of Appeal remitted AA(2) for further, limited, reconsideration because it considered that the Tribunal in AA(2) did not deal adequately with the evidence of two important witnesses, identified as witnesses 5 and 6 (“W5” and “W6”), these being the two witnesses who had worked with military intelligence, one of whom, W6, was based at the old Harare airport. Although neither had worked at the new airport and had both left Zimbabwe some years ago, they both said they were able to describe current procedures at the new airport because they had remained in contact with former colleagues who worked at the new airport.
37. It is, of course, important to identify clearly the extent of the reconsideration of AA(2) required by the Court of Appeal and so we set out what was said in this regard by May LJ:
30. The case advanced on behalf of AA in this appeal is both general and particular. The general case is that it was not rationally open to the Tribunal on the evidence as a whole to find that there was a two-stage screening interview process at the airport, and that the first stage was to be regarded as risk-free for those without an adverse political profile, a questionable military history or outstanding criminal matters. The direct experience of W5 and W6 was out of date. It ended in 1998 and 1996 respectively. It was at a time when there were few returning asylum seekers from the United Kingdom. It was at a different and less spacious airport.
The Tribunal's findings were incompatible with what is known about Zimbabwe generally, with what is known about how the CIO operates, and the experiences of a significant number of the individual returnees properly considered. It is said that, in contemporary circumstances, the division of the procedure into two stages was illusory. It was extrapolated from evidence which did not include suspicion of the person returning to Zimbabwe. Now a failed asylum seeker returning from the United Kingdom would be regarded with suspicion and hostility and would probably be revealed to be a failed asylum seeker. In these circumstances, interrogation by intelligence services, whom W6 regarded as no longer professional, for a period of several hours must constitute a real risk of serious ill-treatment in the light of the evidence as a whole.
31. We are not persuaded that this general case alone predicates an error of law sufficient to sustain this ground of appeal. We have carefully considered the written and oral evidence of W5 and W6. Their direct experience was not contemporary, but they both had contacts in Zimbabwe. Their evidence did sustain a finding of a two-stage process. Apart from particular points about their evidence, which we consider below, and subject to possible further consideration of the evidence and information about individual returnees in the light of the particular points and generally, we consider that it was open to the Tribunal to make the factual evaluative judgment in this respect which they did.
32. The particular part of this ground of appeal is, however, more persuasive. Those advising AA considered that the Tribunal's written determination had failed to take account of parts of the evidence of W5 and W6 which supported the case that involuntarily returning failed asylum seekers faced a real risk of serious ill-treatment even at a first stage screening interview. There was no transcript of the evidence of these witnesses, but the notes of evidence taken by members of the Tribunal have been provided to us. In summary the relevant parts of that evidence are as follows.
33. W5 said in his statement that his current contact at the airport told him that all returned asylum seekers were handed over to the CIO who carried out thorough questioning and then decided what should be done. In re-examination, as noted by the Chairman and another member of the Tribunal, he explained that the thorough questioning, as he understood it, involved the use of crude techniques, which he referred to as coercion.
34. W6 also explained in oral evidence what happened at the airport in the screening interview. As noted by the Chairman of the Tribunal, he said "there was abuse at the airport; kicking, beating, not torture". The note made by another member of the Tribunal was to the same effect, but noticeably that was when W6 worked at the airport. He left, he said, because of corruption in government and things going the wrong way. These days, he said, the Zimbabwe Intelligence Services were no longer professional.
35. This evidence
of W5 and W6 as to significant violence at the airport did not stand
alone. It was reflected in some of the complaints made by or on behalf
of some of the individual returnees, and in our judgment it should have
been addressed. Mr Kovats accepts that the Tribunal's decision says
nothing about hitting and kicking at the airport. The reference to thorough
questioning is quoted, but there is no reference to the explanation
by the witness of what he understood those words to mean. Whether or
not there was violence at the airport was, in the context of this case
and in the context of the Tribunal's own conclusions as outlined above,
an important issue. Not having heard the evidence, we are unable to
say with any confidence how, if this had been addressed, it may have
affected the evaluation as a whole. It might thus be seen, as we indicated
earlier, as pivotal. It could have been determinative of the appeal,
as is apparent from the structure of the Tribunal's judgment.
…
38. However, the question whether failed asylum seekers with no adverse
political profile or relevant military or criminal attributes returning
involuntarily to Zimbabwe face a real risk of inhuman or degrading treatment
is obviously a finely balanced one. We have indicated that, in our view,
a reconsideration of the evidence of W5 and W6 might tip the balance.
Since we regard the evaluation of this evidence about procedures at
the airport as pivotal, and since it is intrinsically bound up with
the general evidence about the attitude and practice of the CIO, we
shall not embark on an analysis of the Tribunal's handling of that evidence
in isolation. We note in particular, however, the submissions in paragraphs
97 to 102 of AA's skeleton argument to the effect that the Tribunal
failed to take explicit account of the evidence of W1 and W2 as to physical
ill-treatment of those questioned by the CIO.
39. Reconsideration of the evidence of W5 and W6 may also require reconsideration, in the light of all the evidence, of the impact which the evidence and information about the 39 individual returnees, taken as a whole and with the other evidence, may have on the appeal. We say this for two reasons. First, ground 5 of the present appeal seeks to challenge the Tribunal's conclusions about three of the individual returnees.
40. There were two inconsistent accounts of R4's treatment when he was removed in January 2005. According to the first, he was intensively questioned, then released; according to the second, he was beaten by the CIO during intensive questioning at the airport. The Tribunal regarded the second account as unreliable for evaluative reasons which are by themselves sustainable, if their earlier conclusions about procedures at the airport are also sustainable, but which otherwise may require reconsideration. One of their reasons was that the first account given by R4 was consistent with the evidence they had received concerning procedures at the airport. If, as we think, the Tribunal's conclusion about procedures at the airport requires reconsideration, so too may their conclusion about R4.
41. Second and generally, the Tribunal's conclusions about the individual accounts taken as a whole (see paragraphs 229 ff to which we have already referred) drew (in paragraph 231) on their earlier conclusions about the evidence of procedures at the airport. Since, as we think, the balance is a fine one, reconsideration of the evidence of W5 and W6 will require reconsideration also of the relevance of evidence about the risk of violence to voluntary and involuntary returnees, who were not merely failed asylum seekers, to those of whom AA is taken to be representative. We note, for instance, submissions on behalf of AA that the evidence of R25 (W7) and R26 (W8) was inconsistent with a conclusion that a real risk of serious ill treatment only arises when a returnee is taken away from the airport. R25 and R26 were MDC activists (not merely failed asylum seekers) whose evidence complained of serious ill treatment and showed that there are sufficient facilities to enable beatings to be inflicted during questioning at the present international airport.
42. Ground 5 also seeks to criticise the Tribunal's findings in relation to R19, but the criticism is insubstantial. The information about R19 was extremely vague and there was no indication at all of the nature of the problem he was said to have encountered. That remained so with the addition of Ms Harland's evidence that the problems, whatever they were, occurred at the airport.
43. Criticism of the Tribunal's decision in relation to R31 seems to us to have more substance. She was not an asylum seeker and the information about her came from what appears to be an internet news report. She was a student who had been refused an extension of her leave to remain in the United Kingdom. At the airport, she was, according to a report, subjected to a hostile interview during which she was struck across the mouth when she asked why the interviewers would not believe she was just a student. After about three hours of interview, she said that she had an uncle in the Zimbabwean national army. He was contacted and she was released. As she left, she could hear the shouts and groans of two other deportees.
In paragraph 205
of its determination, the Tribunal said that the treatment to which
this witness claimed to have been subjected did not amount to serious
ill-treatment such as to engage Article 3. We have difficulty understanding
why not. We agree that trivial violence to an interviewee might not
engage Article 3. But Mr Nicol pointed to what was said by the European
Court of Human Rights in Ribbitsch v Austria (1995) 21 EHRR 573 at paragraph
38 about injuries deliberately inflicted on a person in police custody,
as follows:
"The court emphasises that, in respect of a person deprived of
his liberty, any recourse to physical force which has not been made
strictly necessary by his own conduct diminishes human dignity and is
in principle an infringement of the rights set forth in Article 3 (art
3) of the Convention."
The brief account in relation to R31 does not give us the impression that, properly considered and in context, the violence was trivial. In saying this, we take account of Mr Kovats' submission that the physical violence in Ribbitsch was gross and that the issue was whether the injuries had been sustained accidentally; and that other cases in which the court has found physical mistreatment of those in detention by state officials went well beyond that complained of in the case of R31.
Mr Kovats referred in Ireland v United Kingdom (1978) 2 EHRR 25, paragraphs 92-130; Tomasi v France (1992) 15 EHRR 1, paragraphs 105-115; Selmouni v France (2000) 29 EHRR 403, paragraphs 82-89; and Balogh v Hungary, [2004] ECHR 361, application 47940/99 (20 July 2004), paragraphs 10 and 45-46. The Tribunal went on to point out that the news report was clearly intended to fulfil a journalistic point, and that R31 could not be identified, so the Secretary of State was unable to test the account in any way. That certainly affects the weight to be given to the evidence. But, unless the account was to be wholly disregarded, the point in relation to the Tribunal's perception of the threshold for Article 3 violence for this returnee did need to be addressed.
38. It is common ground that the reconsideration of these issues can be conducted in this appeal. The appellants are not the same but the issues are. Both parties are represented by the same legal representatives and both counsel have appeared throughout the AA litigation.
Overview of evidence
39. Apart from one person who was removed involuntarily following AA(2) there have been no such removals of failed asylum seekers since November 2004. This means that there is no recent direct evidence of such removals and so the risk faced by those who might now be forcibly removed to Zimbabwe after making an unsuccessful asylum claim must be assessed on the basis of other evidence. That evidence, broadly, falls into the following categories. As well as the evidence of Witnesses 5 and 6 there is background evidence about the country conditions generally. We have the benefit of expert evidence from Professor Ranger and witness 66. That evidence assists the Tribunal in that it provides an opinion as to what inferences can be drawn from the objective evidence by those who are said to be well informed and so in a position to express such an opinion. There is also evidence from other informed sources who do not hold themselves out to be experts. This category of evidence includes what is said by the NGOs, staff working at the British Embassy in Harare and journalists and others who maintain an interest in Zimbabwean affairs. The respondent relies also upon the evidence of Mr Walker, a Senior Executive Officer in the Country Specific Asylum Policy Team of the Asylum Policy, Border and Immigration Agency and upon the information collected by the IOM.
40. We have regard also to the evidence concerning the individual returnees, which has been updated by further enquiries made by Ms Sarah Harland of the Zimbabwe Association.
41. Without making this determination needlessly long we cannot separately analyse all the evidence that has been put before us but in reaching our conclusions we have, of course, had regard to all the evidence, paying particular attention to that to which we have been specifically referred.
The legal test in assessing risk.
42. The Court of Appeal approved the test applied in AA(2) as was set out at paragraph 31 of that determination:
“The issue is whether the evidence establishes a real risk. The Appellant does not need to show a certainty or a probability that all failed asylum seekers returned involuntarily will face serious ill-treatment upon return. He needs to show only that there is a consistent pattern of such treatment such that anyone returning in those circumstances faces a real risk of coming to harm even though not everyone does. So, is there evidence pointing to a substantial number of cases in the context of general evidence showing that involuntarily returned failed asylum seekers are at real risk of being subjected to serious ill treatment on that account alone?”
This does not mean, of course, that the assessment of risk is to be based solely upon our assessment of the evidence concerning those who have been subjected to enforced return in the past. That is just part of the overall picture. As there is no current evidence of what happens to asylum deportees, inferences must be drawn from the evidence as a whole. As the Tribunal said in AA(1):
“… the Appellant needs to establish a real risk to returned asylum seekers. He does not need to show that all, or nearly all, returned asylum seekers are harmed. He needs only to show that all returned asylum seekers are at real risk. He can do that, as a matter of logic (and in our judgement as a matter of law) by any evidence that properly leads to the conclusion in question.”
The existing country guidance: SM and Others (MDC-internal flight-risk categories) CG [2005] UKIAT 00100.
43. Having heard evidence from Professor Ranger the Tribunal in SM found that the evidence established that those identified on return to Zimbabwe as persons who had been deported from the United Kingdom would be subject to interrogation:
“41. The Tribunal accepts from his evidence and from the news reports in Zimbabwe that those deported to Zimbabwe from the United Kingdom will be subject to interrogation on return. In the light of the interest and comment the resumption of returns has raised in the government press in Zimbabwe it seems to us to be inevitable that this will be the case. If it is being asserted by the Zimbabwe government that returns are being used as a cloak for British agents and saboteurs to be smuggled into the country, it is likely that those returns will be carefully monitored whether for that reason or to identify and intimidate opponents to the regime. The reports in the newspapers in Zimbabwe are consistent with there being an atmosphere of suspicion to those returned. The returnee in the New Zimbabwe report was released following a telephone call made to an uncle serving in the army but only after an intimidating interview. We take into account that before returns were suspended there was some evidence that returnees were investigated. We have our doubts about the story of the returnee in the article from January 2002 and his escape out of an airport lavatory window at Harare and his subsequent travel to South Africa, but in any event we are concerned with returns at the present time. We also approach with caution the reports that a number of recent returnees have never re-appeared once they were taken from the plane by CIO agents and that others have disappeared. No names or details have been provided and if, as Professor Ranger says the returns have been carefully monitored, we would have thought such details would be available.
42. Nonetheless the Tribunal is satisfied in the light of the statements made by the Zimbabwean authorities that returnees are regarded with contempt and suspicion on return and do face a very hostile atmosphere. This by itself does not indicate that all returnees are at real risk of persecution but that returnees are liable to have their background and circumstances carefully scrutinised by the authorities. We are satisfied that those who are suspected of being politically active with the MDC would be at real risk. We agree with Professor Ranger that if the authorities have any reason to believe that someone is politically active the interrogation will be followed up. There is a reasonable degree of likelihood that this will include treatment sufficiently serious to amount to persecution.”
44. Two observations might be made concerning that extract from SM. First, Professor Ranger has identified the first returnee mentioned in paragraph 41 above as the person referred to in these proceedings as witness 8 or returnee 26. The individual who was released following the intervention of her uncle is Returnee 31.
45. Secondly, as we shall see, the word “interrogation” when used in the context of the CIO in Zimbabwe has acquired a very particular meaning and is quite different from what is referred to as an interview. It is clear to us that the Tribunal in SM did not intend to import that meaning into the process of interrogation referred to above and so this is not a finding that all those questioned by the CIO on return to Zimbabwe will be questioned in a manner that can be expected to be accompanied by violence.
The background country evidence
46. In AA(2) the Tribunal described the general country conditions in Zimbabwe as poor and deteriorating. That deterioration has continued. This is acknowledged by Mr Kovats who sets out this summary in his skeleton argument:
“The population of Zimbabwe is about 13 million: 18 June 2007 Home Office Border and Immigration Agency Country of Origin Information Report on Zimbabwe (“COIR”) paragraph 1.04 [R178]. It has been estimated that about 3.4 million of them have left the country, most to South Africa: 1 July 2007 Observer article [A vol.A 770].
…
Inflation is spiralling out of control, and the currency is effectively worthless: COIS [R175]. A United Nations report published on 14 June 2007 predicted that the country would collapse within 6 months: COIR [R175]. The shops have been emptied by panic buying: 5 July 2007 Guardian article [A vol.F 774]. On 5 April 2007 the Catholic bishops of Zimbabwe issued a pastoral letter which was a damning indictment of the Zimbabwean government [A vol.A 403-406]. On 10 July 2007 the BBC reported Archbishop Ncube as saying that the situation had become life threatening. It has been said that only remittances from abroad and revenue from platinum mining keep the country going: COIR paragraph 2.08 R181-R182]; 8 July 2007 Times article [A vol.A 780].
The unemployment rate is 80%: COIR paragraph 7.02 [R197]. 80% of Zimbabweans live on less than US$1 a day: COIR paragraph 2.08 [R181].
The judicial system bows to the executive: COIR paragraph 13.13 [R254-R255].
The public health service has collapsed: COIR paragraphs 29.01 [R327] ICRC [A vol.A 576]. Zimbabwe has the world’s lowest female life expectancy, 34 years: COIR paragraph 25.01 [R304]. One in 12 children dies before the age of 5: COIR paragraph 26.05 [R312]. There are 1.8 million orphans and vulnerable children, largely as a result of AIDS: COIR paragraph 26.20 [R316]. Approximately 1.6 million Zimbabweans are HIV+: COIR paragraph 29.26 [R333]. About 3,000 are dying from AIDS every week: COIR paragraph 29.05 [R327-R328]. The BBC has reported that you need a ZANU-PF card to get treatment at government hospitals: COIR 29.24 [R332].
The World Health Organisation estimates that about 5 million Zimbabweans are unable to meet their minimum food requirements: COIR paragraph 29.01 [R327]. Drought will further reduce the harvest this year: COIR paragraph 30.22 [R348]. Food distribution was used as a political tool in the 2005 election: COIR paragraphs 30.28 [R349] and 30.31 [R350]. The CIO is in charge of grain distribution: COIR paragraph 11.62 [R233].
The electricity and water systems are in crisis: COIR paragraph 29.04 [R327].
Around 700,000 people lost their homes in Operation Murambatsvina, and a total of about 2.4 million people were affected, directly or indirectly: COIR paragraphs 31.01 [R352] and 31.10 [R354]. About 500,000 farm workers lost their homes in the government’s land seizure programme: COIR paragraph 30.04 [R343-R344]. There are approximately 1.7 million internally displaced people in Zimbabwe: COIR paragraph 33.01 [R361]. 75% of families deported to rural areas in Operation Murambatsvina have returned to urban areas [A vol.A 4]. The report by the Zimbabwe Peace Project, entitled Partisan Distribution of Food and other forms of Aid at District Level: the Case of Manicaland (September 2006) [A vol.A 8-33] provides evidence of the distribution of aid on political grounds but does not indicate significant discrimination against returnees as such. Only 14 of the 74 case studies concerned persons who had returned from abroad, and of those only 1 had returned from the United Kingdom. “
47. In his skeleton argument Mr Henderson points to evidence that the purpose of operation Murambatsvina was to drive the urban population into rural areas under the control of the Mugabe regime so as to prevent any uprising in the cities. He refers to a report from Human Rights Watch published in September 2005 in which it was said:
“The scale of destruction is unprecedented in Zimbabwe. Indeed, there are few if any precedents of a government so forcibly and brutally displacing so many of its own citizens in peacetime”
48. In a more recent report, published on 28th March 2007, it is said that the suppression and harassment of perceived or potential opponents of the regime continues:
“The government of Zimbabwe has permitted security forces to commit serious abuses with impunity against opposition activists and ordinary Zimbabweans alike, Human Rights Watch said today. Security forces are responsible for arbitrary arrests and detentions and beatings of opposition Movement for Democratic Change (MDC) supporters, civil society activists and the general public.”
The deputy Africa director at Human Rights Watch is quoted in the same report as saying:
“The government of Zimbabwe has intensified its brutal suppression of its own citizens in an effort to crush all forms of dissent. The crackdown shows the government has extended its attack on political dissent to ordinary Zimbabweans, which should prompt the Southern African Development Community to act quickly.”
Although the reports concerning state sponsored violence against Zimbabwean citizens indicate that the primary targets are those perceived to be the ruling party’s political opponents, this report gives examples of abuse suffered at the hands of the police by ordinary citizens who were not conducting themselves in a manner such as to identify themselves as political activists:
“Human Rights Watch recently spent two weeks in Zimbabwe interviewing many victims of abuse and witnesses to the political unrest in the cities of Harare, Bulawayo and Mutare. Witnesses and victims from Harare’s high-density suburbs of Glenview, Highfield and Mufakose told Human Rights Watch that for the past few weeks police forces patrolling these locations have randomly and viciously beaten Zimbabweans in the streets, shopping malls, and in bars and beer halls.
Police forces have also gone house to house beating people with batons, stealing possessions and accusing them of supporting the opposition. The terror caused by the police has forced many families in the affected areas into a self imposed curfew after dark.”
49. The view that abuse is now being visited by the authorities upon a wider range of victims than those who involve themselves in opposition activity is expressed in another more recent Human Rights Watch report dated May 2007 entitled “Bashing Dissent”: Having made reference to the arrest and detention of hundreds of MDC members following a ban upon political rallies and meetings imposed in February 2007 the report observes:
“The arrest and severe beating of these opposition leaders and civil society activists by police and state security officers marked a new low in Zimbabwe’s seven-year political crisis. It ignited a new government campaign of violence and repression against members of the opposition and civil society – and increasingly ordinary Zimbabweans – in the capital Harare and elsewhere throughout the country. The ominous statements by Zimbabwe’s President Mugabe on March 17 and 29, 2007 that the opposition members and civil society activists deserved to be “bashed” by the police highlighted the government’s blatant disregard for the basic human rights of its citizens that authorities at all levels have shown during Zimbabwe’s political crisis.”
50. In an Independent On Line report dated 1st June 2007 it is said that:
“President Robert Mugabe has urged Zimbabwe’s security forces to remain on high alert to thwart attempts to topple his government by the opposition and his western foes, official media reported on Friday”
President Mugabe, addressing a ceremony for graduating police officers, said:
“Our security forces have heightened their vigilance in order to thwart the subversives manoeuvres of those who engage in crimes of political violence. I wish to call upon people of Zimbabwe to unite against the shameless British arm-twisting tactics being orchestrated through the MDC and the so called civil groups.”
51. That evidence establishes that conditions for the ordinary citizen of Zimbabwe are exceedingly difficult and those politically active in opposition to the regime or who are identified as active critics of the regime continue to face a real risk of being subjected to serious ill-treatment if they fall into the hands of the agencies of the state. The risk categories identified in SM will need to be revisited in the light of the evidence about the treatment of those active in human rights organisations and what are referred to as the “civil society organisations”.
52. But that is not the main issue in this appeal which is concerned with the question of whether a person identified on return to Harare airport as a failed asylum seeker would face a real risk of being subjected to serious harm on that account alone. We are concerned also with an assessment of the risk faced by such a person after he or she has passed through the airport and returned to his or her home area or other place of intended residence.
53. There is no current evidence of how that class of persons is treated. But in assessing that risk the Tribunal can look at the current country evidence with the assistance of the expert opinion available in the light of what is known about the experiences of those who were forcibly returned to Zimbabwe, even though those removals were suspended some time ago. Put another way, inferences must be drawn from what is known to occur today in Zimbabwe as to how failed asylum seekers are likely to be treated, if they are identified as such upon return.
Country conditions and article 3 of the ECHR.
54. Before embarking upon that enquiry we consider the argument advanced on the appellant’s behalf that the general country conditions in Zimbabwe are now so bad that there would be an infringement of her rights under article 3 of the ECHR if she were required to return.
55. Article 3 of the European Convention provides that:
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
56. In submitting that there would be an infringement of article 3 Mr Henderson relies upon what was said by Lord Brown at paragraph 24 of his speech in R (Bagdanavicious) v SSHD [2005] UKHL 38. He said that it was important:
“to grasp the distinction in non-state agent cases between on the one hand the risk of serious harm and on the other hand the risk of treatment contrary to article 3. In cases where the risk "emanates from intentionally inflicted acts of the public authorities in the receiving country" (the language of para 49 of D v United Kingdom 24 EHRR 423, 447) one can use those terms interchangeably: the intentionally inflicted acts would without more constitute the proscribed treatment. Where, however, the risk emanates from non-state bodies, that is not so: any harm inflicted by non-state agents will not constitute article 3 ill-treatment unless in addition the state has failed to provide reasonable protection.”
57. Although Mr Henderson asserts in his skeleton argument that it is not in dispute that the present humanitarian catastrophe “emanates from the intentionally inflicted acts” of President Mugabe’s regime, that is not so. As Mr Kovats makes clear in his submissions, the respondent’s position is that the food shortages, interruption in water and power supplies, and the other consequences of the collapsed economy may well be the result of governmental incompetence and crop failures due to the lack of farming expertise and drought but it is not the purpose of governmental policy to visit deprivation upon the people of Zimbabwe.
58. We do not accept that the current economic crisis and near collapsed infrastructure is a deliberate, intended consequence of the actions of the government. Subject to what we say below about Operation Murambatsvina, the evidence simply does not establish that the current country conditions are the intended aim as opposed to the unintended consequence, of government policy.
59. We do accept that poor
living conditions are capable of raising an issue under article 3 if
they reach a minimum level of severity. See: Pancenko v Latvia No 40772/98.
A similar view was taken by the House of Lords in R v SSHD ex parte
Adam, Limbuela and Tesema [2005] UKHL 66. At paragraph 7 Lord Bingham
said:
“… Treatment is inhuman or degrading if, to a seriously
detrimental extent, it denies the most basic needs of any human being.
As in all article 3 cases, the treatment, to be proscribed, must achieve
a minimum standard of severity, and I would accept that in a context
such as this, not involving the deliberate infliction of pain or suffering,
the threshold is a high one. …… But I have no doubt that
the threshold may be crossed if a late applicant with no means and no
alternative means of support, unable to support himself, is, by the
deliberate action of the state, denied shelter, food or the most basic
necessities of life. ..”
60. This concept of a varying threshold to engagement of article 3, dependant upon the responsibility of the receiving state for the circumstances complained of, is analogous to that discussed below in the context of the risk of ill-treatment faced by deportees to Zimbabwe at the hands of those concerned with their reception at Harare airport. But we have found that the difficult living conditions are not visited upon the people of Zimbabwe generally by the deliberate actions of the state. Other than those who have been made homeless and displaced to areas where they have no support mechanisms to fall back on as a consequence of Operation Murambatsvina, citizens of Zimbabwe face such difficulties as they have to confront as a consequence of ill-judged political initiatives, economic mismanagement and unusually bad weather conditions affecting further the capacity of the country to produce crops.
61. That being the case the appellant faces a high threshold in seeking to establish that the act of the United Kingdom in returning her to Zimbabwe will expose her to a real risk of having to live in circumstances that will represent an infringement of her rights protected by article 3.
62. The country conditions, poor as they are, do not establish that the generality of those returning to Zimbabwe today would be subjected to conditions that are sufficiently grave as to infringe article 3. Even if conditions were life threatening, that in itself would not enable the appellant to rely upon article 3 to resist removal. That much is established from what might be referred to as the article 3 health cases. As can be seen from N v SSHD [2005] UKHL 31, there would be no infringement even where:
“in almost all these cases stopping the treatment will lead in a very short time to a revival of all the symptoms from which the patient was originally suffering and to an early death.”
63. Further, the evidence does not establish that everyone presently living in Zimbabwe is doing so in the conditions of near complete deprivation that some evidently are. The WHO report referred to in paragraph 46 above notes that 5 million Zimbabweans are unable to meet their minimum food requirements. That means, of course, that something approaching a similar number are able to. We have heard evidence of how people survive which we discuss later in this determination. Support, both material and financial, can be and is provided to some by relatives living abroad. Many houses have been demolished and many people have been required to relocate to areas they might not have chosen, but many are not subjected to those difficulties. There is free movement across borders with some neighbouring countries and we have before us accounts of those who make regular trips across the border to buy goods or to trade.
64. We find that returnees, whether deportees or voluntary returnees, do not all face living conditions sufficiently severe to reach the article 3 threshold. This does not mean that each such claim must fail. Each case must be considered on its own facts. That is acknowledged by the respondent’s own Asylum Policy Instruction on discretionary leave:
“There may be some extreme cases (although such cases are likely to be rare) where a person would face such poor conditions if returned – e.g. absence of water, food or basic shelter – that removal could be a breach of the UK’s Article 3 obligations…”
65. The appellant is a qualified doctor who has worked at a state hospital in the past. It can be seen from the Country of Origin Information report that there is a huge demand for medical professionals and, despite what she says in a recent witness statement (which we deal with below), there is no reason to believe that she will not immediately be welcomed back into practice and hence relatively well paid employment.
66. Large numbers of people lost their homes in the course of Operation Murambatsvina. This appellant has parents living in Bulawayo. There is no suggestion that her father, having left the farm, has had any difficulty in obtaining and retaining the accommodation he now occupies. The appellant’s mother continues to have access to their former home on the farm, even if the land is no longer in their possession. The appellant has not suggested that her parents have been unable to feed and accommodate themselves or otherwise provide for themselves. Her brother is settled in the United Kingdom. She can, if it be necessary, look to him for support as very many Zimbabweans with relatives abroad do. Hers is by no means an extreme case.
67. There may be some people whose living conditions are sufficiently desperate to establish the required minimum level of severity necessary to engage article 3. The evidence indicates that some have no housing, income, access to basic services including healthcare and education as well as no dependable source of drinking water or adequate supply of food or basic shelter. But there are also a large number of Zimbabweans who continue to travel to Zimbabwe as ordinary passengers and it is not reasonably likely that would be the case if all those in Zimbabwe at any given time faced a real risk of experiencing the more extreme living conditions possibly experienced by some.
68. We are satisfied that the evidence does not establish that removing this appellant to Zimbabwe would bring about an infringement of the United Kingdom’s obligations under article 3 on account of the general country conditions or the living conditions that she would be returned to.
The respondent’s case.
69. The respondent accepts that there are some categories of persons who would be at risk of being subjected to persecutory ill-treatment at the hands of the agencies of the state upon return to Zimbabwe. But the respondent does not accept that those identified on return to Harare airport as persons who have unsuccessfully claimed asylum in the United Kingdom are such a category.
70. We heard oral evidence from one witness on behalf of the respondent. Mr Mark Walker, Senior Executive Officer in the Country Specific Asylum Policy Team of the Asylum Policy, Border and Immigration Agency. He has provided evidence at each stage of the AA litigation.
71. Mr Walker adopted his witness statement dated 26th June 2007 as all he wished to say in his evidence in chief. Not everything in the statement is within the personal knowledge of Mr Walker. He received and passes on information received from a variety of sources, some identified and some not.
72. Mr Walker confirmed that after the suspension of enforced returns of failed asylum seekers was lifted following AA(2), just one such person was removed before the Secretary of State once more undertook to defer involuntary removals to Zimbabwe on 26th September 2006.
73. He said that did not mean that there was a moratorium on all involuntary removals. Since that date 23 Zimbabweans who had been refused leave to enter or remain in the United Kingdom but who did not claim asylum were forcibly returned to Zimbabwe. One of these returnees was deported following his conviction of an offence of possessing cannabis, an offence for which he was imprisoned for two years. He has given details of his experiences on return. He is identified as Witness 56 (“W56”).
74. W56 said that the police were waiting for him at Harare Airport when he arrived on 19th March 2006. After passing through immigration he was taken to their office at the airport and asked about the offence. When he said that he was simply carrying a case for a woman who was not herself arrested they told him he was not co-operating and so he was taken to Harare Central police station where he was questioned for three hours before being released. He was asked to give the names of other Zimbabweans in prison in the United Kingdom. He was told he would be beaten at the police station but this did not happen. He was not physically ill-treated at any stage and although he was told that he would be the subject of continuing attention, he was not aware that he was.
75. There is no report that any of the other 22 persons removed involuntarily to Zimbabwe since September 2006 has been subjected to ill-treatment upon return, either at the point of entry or upon return to their home areas.
76. Mr Walker described how an officer from the British Embassy in Harare meets key NGOs and representatives of the IOM on a monthly basis and reports of the information obtained from those sources are produced. We do not propose to embark upon a detailed analysis of this part of the evidence. With regard to the evidence of the IOM we take the same view as did the Tribunal in AA(2) in concluding that the monitoring then proposed of returnees under the pilot project described in the draft Memorandum of Understanding with the IOM was of no direct relevance to the assessment of the risk on return to any particular returnee, as the IOM is not in a position to observe what goes on before a passenger emerges from immigration control. All that can be said of this evidence is that it does not assist the appellant in establishing that abuse does occur at the airport.
77. There is now some information from the IOM monitoring exercise but, with one exception, that relates to those who were not removed as failed asylum seekers and would not have been identified as such at the airport because it may be assumed that the Zimbabwean authorities were well aware that removals of such persons had been suspended.
78. With regard to the NGOs, again we find this evidence really takes the matter not much further either way. Insofar as that evidence concerns the general country conditions or describes the excesses of state agents, that does no more than repeat what is before the Tribunal from other sources. We have regard to this category of evidence as providing further confirmation of those conditions. Those organisations are unable to comment on the treatment of failed asylum seekers forcibly returned to Zimbabwe because there have been no such returns, apart from the single case in July 2006, for some considerable time. We do take account of the opinions expressed as to how they believe involuntarily returned failed asylum seekers identified as such would be treated but it is, of course, for the Tribunal to assess that risk based upon the evidence available.
79. A significant part of Mr Walker’s evidence concerns information he passes on that has been obtained by two unidentified officials associated with the British Embassy in Harare. They are referred to as BE1 and BE2, and their evidence, as it is reported by Mr Walker, is as follows.
80. As he travelled through the airport BE1 engaged in casual conversation a number of individuals working for the Civil Aviation Authority of Zimbabwe, Air Zimbabwe and the management of the airport. From these conversations BE1 gleaned information which he or she believed to be true because the sources were apparently “speaking in good faith”. The information included that military personnel were present at the airport only infrequently and required specific authorisation to enter airside or the arrivals area and that CIO officers will normally pick out any passenger they wish to interview as he or she leaves the baggage collection area where there is a line of interview booths. Other offices are available in the Civil Aviation Authority of Zimbabwe above the terminal.
81. BE1 said that his informants had told him that:
“In practice it is extremely rare (the individual from the Civil Aviation Authority of Zimbabwe said “never”) for individuals to be picked out and interviewed by CIO officers at the airport; the expectation was that this would happen elsewhere if required.
If CIO or other security personnel were intent on using violence against an arriving passenger, they would be very unlikely to do so at the airport.”
82. BE2, who was said to be familiar with operations at Harare Airport, informed Mr Walker that CIO officers, equipped with the passenger manifest, monitor arriving passengers. They are rarely at immigration desks but may have the means of monitoring arrivals through a new immigration computer system as immigration officers type in details.
83. Mr Walker says also:
“British Embassy officials have also spoken to one person familiar with the operation of the airport, but who is not willing to be identified, who told the Embassy that returned failed asylum seekers would have a routine interview with the CIO airport team and little or no follow up afterwards. That person has never heard of returnees coming to any harm.”
84. Mr Walker produces a statement from another individual, who declines to be identified and is known only as “X”. He was contacted by Embassy officials because he is familiar with the operation of the airport in Harare. He says in that statement that individuals returning to Zimbabwe voluntarily would be of no interest to the authorities as they would be indistinguishable from other passengers. Those returned involuntarily would be of interest only if something was already known of them or if they have some form of political profile. Apart from the recent attack on Nelson Charmisa, which took place outside the airport building, after he had been denied passage though the airport, X has never heard of or seen instances of physical violence at Harare Airport or of anyone being taken away from the airport by the Zimbabwean authorities.
85. In the statement of X he says also that he has never come across, or heard of, a Major of the name referred to by Witnesses 5 and 6.
86. In his witness statement Mr Walker said that the British Embassy had made enquiries about the individuals referred to by Witnesses 5 and 6 (“W5 and W6”). The Embassy has “good and comprehensive records of officers of the Zimbabwean Defence Forces, including those who worked in military intelligence between 1980 and 2001. But, there is no trace on that database of either W5, who claimed to work in that capacity at the airport between 1993 and 1998, or of the Major who is said to be the source of W5’s information about procedures at the new airport.
87. In response to the assertion that there was no Major working in military intelligence to supply up to date information to W5 and that W5 himself was not a military intelligence officer as he claimed, the appellant’s representatives assembled and submitted a large array of evidence to the contrary. Subsequently, Mr Kovats said in his skeleton argument:
“In light of the information provided in the further statements of witnesses 5 and 6 the respondent accepts that witness 5 worked for Zimbabwean military intelligence and is not contesting the existence of the Major.”
88. As became plain from Mr Walker’s oral evidence, those words were chosen carefully. Mr Walker declined to confirm, when asked to do so in cross examination, that he now accepted that the Major did exist. He simply accepts that he is not able to put before the Tribunal sustainable evidence to establish that he does not. That being the case, he accepts also that in view of the evidence concerning the Major put forward by the appellant the Tribunal is bound to accept that the appellant has established to the standard required that the Major does exist and that he has carried out the role described by W5 and W6.
89. To what extend does this concession made by the respondent have a broader effect? Mr Henderson submits that no weight at all should be placed upon the evidence of Mr Walker that originates from unidentified sources associated with the Embassy in Harare. Mr Henderson points out that the Tribunal is asked by the respondent to rely upon evidence that is given third hand and to accept Mr Walker’s assessment of the sources as being reliable. In Mr Henderson’s submission such evidence should not be seen as reliable.
90. Of course, the same could be said of the evidence of W6 who declines to identify his sources. At least “X” has provided a written statement so that we can see his words rather than those recalled and passed on by those to whom he spoke. But in the one respect that it has been possible to check the accuracy of the information passed on to him, thought by Mr Walker to be correct and reliable, it has been found to be wrong. This, in our view, so undermines this part of the evidence that we are unable to rely upon it at all. There is no independent reason for finding it to be reliable: the only evidence is that it is not.
91. Mr Walker also addresses that part of the appellant’s case that raises repeated references to the attitude of the Zimbabwean authorities who are seen to be associated with Britain. Mr Walker points to evidence of co-operation between the Zimbabwean authorities and this country in the interests of its citizens who wish to benefit from being in the United Kingdom. Through the Chevening Scholarship and the Canon Collins Chevening Scholarship programmes, administered by the British Council in Zimbabwe, 74 people came to the United Kingdom to study. At least 23 scholars who have benefited from these scholarships since 2004 have returned to Zimbabwe to assume responsible positions in the public sector. Some are now senior civil servants. Others are managers in government agencies, banks, business and the media. There is no suggestion that any of these people have experienced any difficulty in travelling in and out of Zimbabwe even though it would be apparent that they had been in the United Kingdom for some time.
92. There has been no suggestion either that these people have been accused of being indoctrinated in the United Kingdom and sent back as spies or to destabilise President’s Mugabe’s regime or to bolster the opposition.
The Central Intelligence Organisation
93. The current Country of Origin Information report (COIR) upon Zimbabwe notes that:
“The Central Intelligence Organisation was formed by the Rhodesian authorities in the late 1960s as the country’s main civilian intelligence agency. It was later taken over by the Zimbabwean government, ideologically re-oriented