United Kingdom Immigration and Asylum (AIT/IAC) Unreported Judgments

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IN THE UPPER TRIBUNAL IMMIGRATION AND ASYLUM CHAMBER	Case No: UI-2025-000169
	First-tier Tribunal No: PA/57379/2023 LP/03171/2024

 

THE IMMIGRATION ACTS

Decision & Reasons Issued:

 

On 3 ^rd of April 2025

 

Before

 

DEPUTY UPPER TRIBUNAL JUDGE LAY

 

Between

 

ORR (Zimbabwe)

(Anonymity Order made)

Appellant

v

 

SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation :

For the Appellant: Mr J Acharya, Acharyas Solicitors

For the Respondent: Ms C Newton, Senior Home Office Presenting Officer

 

A hybrid hearing at Field House on 31 March 2025

 

­ Order Regarding Anonymity

 

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

 

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

DECISION AND REASONS

 

1.              The Appellant is a Zimbabwe national who made a fresh claim for asylum on 7 September 2023 on the basis of sur place activity in the UK, notably her role as chair of a local UK branch of a Zimbabwe opposition group (MDC), subsequent involvement in the Citizens Coalition for Change (CCC), her volunteering with an anti-regime online news platform and attendance at protests and other events.

2.              The Appellant's appeal was dismissed by the First-Tier Tribunal in a determination dated 4 November 2024. First-Tier Judge Reed accepted that the Appellant was active in opposition circles in the UK but found that she would not be at risk on return, applying one of the extant Country Guidance cases, namely CM (EM country guidance; disclosure) Zimbabwe CG [2013] UKUT 59 (IAC).

3.              Permission to appeal to the Upper Tribunal was granted by First-Tier Judge Saffer on 1 January 2025.

4.              There was no Rule 24 reply served by the Secretary of State.

The refined grounds of appeal

5.              While the grounds of appeal were somewhat unstructured, it was acknowledged at the outset of the hearing that the two essential grounds were as follows: (i) that there had been a failure to follow Country Guidance determinations, in particular in considering the reasonable likelihood of the Appellant being subject to screening at Harare airport upon arrival: HS (returning asylum seekers) Zimbabwe CG [2007] UKAIT 00094; AA (Risk for involuntary returnees) Zimbabwe CG Rev 1 [2006] UKAIT 00061; and (ii) per paragraph 12 of the grounds, there had been a failure in tandem to integrate findings and evidence of the Appellant's political activism in the UK into the evaluation of her risk profile on return, which also necessarily entailed engaging with the applicable CGs.

6.              The grant of permission by FTJ Saffer was not limited and therefore both grounds were before as arguable: Safi and others (permission to appeal decisions) [2018] UKUT 388 (IAC).

The hearing and preliminary issue

7.              This was a hybrid hearing, with the parties attending via CVP. I was satisfied that there were no material issues affecting the fairness of the hearing.

8.              Before commencing the oral argument, I was provided with two documents which were not in the Composite Bundle: written submissions on the evidence that had been made on behalf of the Respondent and the Appellant, as directed by the First-Tier Judge after the oral hearing in Birmingham, as referenced by the FTJ at paragraph 35 of the determination.

Submissions

9.              Mr Acharya, who drafted the grounds of appeal on which permission had been granted, also provided a skeleton argument and supplemented those submissions by focusing on the purported failure of the FTJ to cite, consider and apply relevant Country Guidance determinations of the Upper Tribunal. He stressed that CM (EM country guidance; disclosure) Zimbabwe CG [2013] UKUT 59 (IAC) had plainly been cited on the Appellant's behalf and the headnote of CM itself includes reference to HS (returning asylum seekers) Zimbabwe CG [2007] UKAIT 00094, which in turn adopted and endorsed AA (Risk for involuntary returnees) Zimbabwe CG Rev 1 [2006] UKAIT 00061. Further, SM & Ors (MDC - Internal flight - Risk categories) Zimbabwe CG [2005] UKIAT 00100 remains applicable Country Guidance on the issue of risk categories.

10.          It followed, in Mr Acharya's submission, that the FTJ was invited, and obliged, to consider the issue of risk during any screening process at Harare airport. In particular, he relied on paragraph 249-250 of AA which states:

249 The purpose of the initial interview [in the airport] 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...

250 If such a political or relevant military profile is suspected ...

...

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... Each case must be considered on its particular facts.

11.          It was submitted on the Appellant's behalf that the determination of FTJ Reed was silent on the airport issue and the relevant Country Guidance that the FTJ was obliged to apply.

12.          As to the findings of fact by the FTJ, consistent with the grounds of appeal, Mr Acharya maintained that paragraph 50 of the determination, in which it was said by the FTJ that "the Appellant had failed to provide constant and reliable evidence that she has a sufficiently high profile", was tainted by failure to have regard to the Appellant's relevant evidence, all in the context of the Respondent's acceptance that the Appellant was an "active member" of the MDC UK. That evidence included her being elected chair of a local MDC branch in the Midlands, her broad and public-facing role at an anti-regime multimedia platform and videos provided of attendance and vocal participation at protests, including outside the Zimbabwe High Commission. This was the essential evidential basis which needed to be married to the existing Country Guidance cases in order to evaluate whether a "political profile would be suspected", applying AA.

13.          On behalf of the Secretary of State, Ms Newton submitted that the primary task of the FTJ had been to decide whether or not the Appellant had a "significant profile" in Zimbabwe and that, once he had decided that she did not, there was nothing further to be done. He had referred to one of the Country Guidance cases, CM. His use of the phrase "adverse attention" at paragraph 55 constitutes an implied reference to HS and AA. He did not need to cite or discuss all of the Country Guidance cases.

14.          Ms Newton also relied on paragraphs 2.4.19 & 2.4.20 of the Respondent's Country Policy Information Note, "Zimbabwe: Opposition to government", dated September 2021, which highlights the ongoing risk of violent attacks on MDC figures in the community (ie. outside of the airport) only if they are people with a "significant profile".

15.          Both the Appellant and the Respondent submitted that, if I were to find an error of law, the appropriate step would be remittal to the First-Tier Tribunal for a de novo hearing.

Conclusions

16.          It is plainly incumbent on a First-Tier Judge to have regard to applicable Country Guidance cases and failure to do is likely to be an error of law, subject thereafter to any arguments about materiality in a particular appeal: SG (Iraq) v Secretary of State for the Home Department [2012] EWCA Civ 940; R (Iran) & Ors v Secretary of State for the Home Department [2005] EWCA Civ 982.

17.          The position as regards Zimbabwe is complex. There is a jigsaw - or perhaps a palimpsest - of multiple Country Guidance cases which remain in place. My concern is that, even though the latest CG of CM was cited, there is no adequate consideration by the FTJ of the landscape of which CM is one part. Indeed, CM itself, both in its headnote and in the body of the determination, points the First-Tier towards HS, a decision promulgated in 2007, which remains a CG in tandem with AA (2006) and, finally, SM & Ors (MDC - Internal flight - Risk categories) Zimbabwe CG [2005] UKIAT 00100.

18.          While I doubt that the FTJ was much assisted by the original Appeal Skeleton Argument in the FTT, even bearing in mind Lata (FtT: principal controversial issues) India [2023] UKUT 163 (IAC) the central issue in the protection appeal was always the Appellant's sur place claim, her activism and visibility and thus the question of risk at Harare airport was in play. With CM and thus HS at the very least brought to his attention, the FTT was obliged to engage with the Country Guidance cases that are designed to assist.

19.          I do not accept the Respondent's contention that there is "implied" consideration of HS or AA in the determination itself. If it is implied, it is - at most - oblique and unreasoned. There is no consideration of the central issue, ie. the evaluation of whether or not there is reasonably likely to be suspicion of the Appellant at the airport, having regard to whether it is reasonably likely she has "a political profile considered adverse to the Zimbabwean regime". The meaning of the latter phrase is fact-specific and depends on the context. The FTJ erred in simply setting the threshold as "high profile" and then concluding that the bar had not been reached. The thrust of the relevant caselaw is that being a failed asylum-seeker returnee will not be enough, nor will mere membership of the MDC. Above and beyond that, the task was to evaluate the degree of sur place political activity, its nature and extent, and then evaluate whether the Appellant would be "considered adverse to the Zimbabwean regime". That procedure was not followed here and, if it was, it is capable of having led to a different outcome

20.          At the same time, I also conclude that there were flaws in the consideration of the evidence provided by the Appellant as to her political activity in the UK. There is no adequate evaluation of the key parts of her corroborative evidence, singly and cumulatively, which included regular visible involvement on an opposition media platform, participation in particular protests and a leadership role in a local MDC UK branch. All of this needed to be assessed in the round and then applied to the issue of the reasonable likelihood of raising suspicion at the airport in the way described by AA.

21.          I have had regard to Section 7 of the "Senior President's Practice Statements of the Immigration and Asylum Chambers of the First-tier Tribunal and the Upper Tribunal" (SPT Ryder, 11 June 2018) and Begum (Remaking or remittal) Bangladesh [2023] UKUT 46 (IAC). Remittal is not the usual course but it is appropriate in the circumstances of this appeal, having regard to the nature and extent of the factual finding required, in addition to the likelihood of significant further updating evidence and multiple oral witnesses.

Notice of Decision

The decision of the First-tier Tribunal, which dismissed the appeal, is set aside and the appeal is remitted to the First-Tier Tribunal to be heard afresh.

 

 

Taimour Lay

 

Deputy Judge of the Upper Tribunal

Immigration and Asylum Chamber

 

 

31 March 2025