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United Kingdom Immigration and Asylum (AIT/IAC) Unreported Judgments |
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You are here: BAILII >> Databases >> United Kingdom Immigration and Asylum (AIT/IAC) Unreported Judgments >> AA132492011 [2013] UKAITUR AA132492011 (23 October 2013) URL: http://www.bailii.org/uk/cases/UKAITUR/2013/AA132492011.html Cite as: [2013] UKAITUR AA132492011 |
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Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/13249/2011
THE IMMIGRATION ACTS
| Heard at Field House | Date Sent |
| On 10th October 2013 | On 23rd October 2013 |
|
| ………………………………… |
Before
UPPER TRIBUNAL JUDGE REEDS
Between
MISS M K
(anonymity direction given)
Appellant
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: Mr M. Symes, Counsel instructed on behalf of Luqmani Thompson and Partners
For the Respondent: Mr C. Avery, Senior Presenting Officer
DETERMINATION AND REASONS
1. The Appellant is a citizen of Zimbabwe.
2. This appeal is subject to an anonymity direction that no report or other publication of these proceedings or any part or parts of them shall name or directly or indirectly identify the claimant. Reference to the claimant may be by use of her initials but not by name. Failure by any person, body or institution whether corporate or incorporate (for the avoidance of doubt to include either party to this appeal) to comply with this direction may lead to a contempt of court. This direction shall continue in force until the Upper Tribunal (IAC) or an appropriate court lifts or varies it.
The Background
3. The Appellant left Zimbabwe on 3rd October 2002 and arrived in the UK on 4th October having been granted leave to enter as a visitor. She subsequently applied for leave to remain as a student and leave was granted from 2003 until 2009. On 28th September 2009, she applied for further leave to remain on a post-study visa which was granted until 11th October 2011. An application was made for asylum on 13th October.
4. In a notice of immigration decision dated 17th November 2011 the Respondent refused that application. Her appeal was heard by Immigration Judge Perry on 6th January 2012 and was dismissed.
5. As set out at paragraph 60 of the determination the following facts were accepted by the Respondent; that the Appellant’s father was a teacher and as such was a target for ZANU-PF youths. There had been a number of violent incidents that had occurred in Zimbabwe including the family being subjected to violence in 2002 when the home was smashed and the family subjected to violence. The police “did nothing” in relation to the attacks at the family home in Harare. There was a further attack upon the family home in 2003, culminating in a serious sexual assault of rape upon the Appellant’s sister and after the family had moved to escape harassment, the Appellant’s parents were subjected to an arson attack in Murewa in 2009.
6. The Immigration Judge, whilst noting that “teachers are targeted in 2011” reached the conclusion that the Appellant would not be at risk upon return to Zimbabwe as there had been nothing in her account to show that she had been an activist or member of the MDC and that there was nothing in the Appellant’s past or present activities that would support her assertion that she was a “perceived supporter of the MDC”. At paragraph 63, the Immigration Judge rejected any link between the Appellant being perceived as a supporter of the MDC and to her father who had been beaten up by ZANU-PF youths because he was accused of teaching MDC policies. The judge found this to be a “distant and tenuous link” that she would be perceived to be an MDC supporter because her father was attacked for the reason that he taught MDC policies. The judge found that there was no evidence that the Appellant’s father was a member or supporter of the MDC or that he taught MDC policies.
7. When considering risk on return, he found that there was no risk arising from her political profile because he had not found that she had any profile that would place her at risk. He found that she would not be viewed as a MDC sympathiser and that she would not be at risk merely because she had been in the UK since 2003 as she would be able to demonstrate that she had been in the UK legally as a student. He did not find that she would come to the attention of the authorities. Thus he dismissed the appeal on asylum grounds.
8. He also considered Article 8 in that determination at paragraphs 72-75 and reached the conclusion that on the facts as presented in this case, that there was no dependency, either emotional or financial, demonstrated by the evidence in relation to her family life with her sister who did not attend the hearing. As regards her private life, he accepted that she had been in the United Kingdom since October 2002 and had studied and worked in the United Kingdom, but found that her removal would be proportionate as the extent of her private life had not been substantial and was one that could be continued in Zimbabwe. He found that she would be able to seek work and resume friendships with people that she had grown up within Zimbabwe and whilst that private life may be different it would remain the same in all essential respects, thus he dismissed the appeal under Article 8.
9. The Appellant sought permission to appeal that decision and First-tier Tribunal Judge Brunnen granted permission for the following reasons:
“(i) The grounds on which permission to appeal is sought argued that the judge failed to take account of the fact that the Appellant, who is from Zimbabwe, is the daughter of a teacher and that she and her family have previously suffered several attacks by ZANU-PF supporters.
(ii) In paragraph 60 of the determination the judge noted that it was accepted the Appellant’s father was a teacher and that teachers were subject to attack in 2011. It was also accepted that the family had suffered attacks in 2002, 2003 and 2009.
(iii) It is arguable that the judge misapprehended the evidence and the country guidance given in EM [2011] UKUT 98 in finding at paragraph 62 and 65 of the determination because neither the Appellant nor her family had in fact been politically active in support of the MDC they would not be at risk of being perceived as MDC supporters. It is arguable that the judge did not take account of the evidence that teachers and their families are being perceived in this way in Zimbabwe irrespective of whether they have been fact to being politically active. It is also arguably inconsistent with the judge’s statement at paragraph 63 that ‘teachers are vulnerable even in 2011’. The judge gave no consideration to the implications of that vulnerability for the safety of the Appellant and arguably failed in this respect to make any finding on a relevant issue. It is arguable to that if the judge had no equated actual and perceived involvement with the MDC he might have come to a different conclusion as to whether the Appellant would be at risk on return not withstanding the points in paragraph 66 as to her long absence in Zimbabwe.
(iv) The grounds refer also to the judge’s reasons for finding that removal would not breach the Appellant’s right to receipt for her private life and argued that he failed to take account of a letter from her employer. Article 8 does not protect and right to work. I do not consider that this letter could have had any material effects on the outcome. However I do not refuse permission to argue this ground.”
10. At a hearing before the Upper Tribunal panel (Judge Coker and Judge Reeds) the Appellant was represented by Mr Jones and the Secretary of State by Ms Holmes. The panel heard submissions from the parties concerning the issues set out in the grounds seeking permission to appeal the decision of the First-tier Tribunal and following the hearing a decision was promulgated setting out the nature of the error of law found by the panel and the consequential directions. The panel reached the following conclusions as to the error of law:
“11. We have concluded that there is a material error of law in the determination of the Immigration Judge regarding risk on return to Zimbabwe. The accepted facts were set out at Paragraph 60 of the judge’s determination. Whilst the Immigration Judge noted that the profile and occupation of the Appellant’s father and that serious incidents of persecution had taken place, the judge did not take account of the evidence that teachers and their family members are perceived to have links to the MDC irrespective of whether they are politically active themselves.
12. We are satisfied that the Judge failed to assess the risk in the light of the totality of the evidence and his findings including the past persecution, that her father was a teacher and perceived to be a supporter of the MDC, the rape of the sister, the arson attack, the relevance of and weight to be placed on the time between adverse incidents and since the last incident, but rather considered it solely in terms of whether her father was a member of the MDC and the risks that attached to that.
13. We find no error of law in the conclusions that he reached when considering Article 8 of the ECHR. In our judgment, the Immigration Judge had little evidence before him in respect of Article 8 and indeed at paragraph 72 of the determination, he noted that the skeleton argument had made no reference of any significance to the Appellant’s rights in relation to family life or private life. Notwithstanding that, the Immigration Judge considered the Appellant’s right to respect for family and private life. We find that the conclusions that he reached on the evidence and set out at paragraph 73 to 75 were conclusions that were open for him to make on the little evidence that he was presented with. There were no submissions made by Mr Jones drawing our attention to any factors that may have been overlooked or misinterpreted or elaborating on the grounds upon which permission had been granted. We are satisfied that the Judge reached a sustainable decision on the basis of the evidence before him and thus find no error of law in the Immigration Judge’s assessment of the issues under Article 8 of the ECHR.
14. At the outset of the hearing we informed the parties that the country guidance decision in EM and Others (returnees) Zimbabwe CG [2011] UKUT 98 (IAC) had been quashed by the Court of Appeal in the decision of JG (Zimbabwe) and CM (Zimbabwe) 13th June 2012 .
15. It was agreed between the parties, and on the stated intention to submit further evidence, that we should adjourn the hearing and for the Tribunal to issue directions.
16. We therefore preserve the findings of the Immigration Judge with regard to the findings set out at paragraph 60 but consider that it is appropriate that the appeal proceed a further hearing to consider further evidence and submissions concerning the risk of return to the Appellant in the light of the issues raised.
17. The case shall be relisted as a resumed hearing in accordance with the directions given. “
11. Following the notification of the panel’s decision concerning the error of law, the matter was not listed for a resumed hearing until September 2012 by which time the Appellant had changed her legal representatives. It appears that there was some delay in obtaining the Appellant’s case file and the necessary papers.
The resumed hearing before the Upper Tribunal:
12. This is a resumed hearing before the Upper Tribunal. At the hearing the Appellant was represented by Mr Symes, Counsel, and the Secretary of State by Mr C Avery, Senior Presenting Officer. For the purposes of this hearing, and in accordance with the directions issued by the Upper Tribunal, a bundle of documentation had been presented on behalf of the Appellant and the previous documentation that had been before the First-tier Tribunal was helpfully consolidated into one core bundle. The bundle numbers pages 1 to 215 and includes within it the documents that were before the First-tier Tribunal including screening interview, substantive interview record, decision letter of 17th November 2011 and also documentation that had been produced on behalf of the Appellant including a letter from her father dated 30th October 2011, a series of certificates concerning her educational qualifications and witness statements dated 22nd November 2011 and 2nd December 2011. The bundle also contains the determination of the First-tier Tribunal promulgated on 16th January 2012 and the documentation relating to the proceedings before the Upper Tribunal.
13. As to other documentation that was not before the First-tier Tribunal, that is dealt with at pages 115 onwards. That consists of background material from an IRIN report (8th June 2012), extracts from the South-West Radio Africa (September 2012), extract ZimOnline February 2012 and extract Zim Diaspora dated November 2010. There is also other background material of more recent origin in the bundle including the US State Department Report 19th April 2013, extract from Voice of America 29th July 2013, extract from African Union dated 26th July 2013, International Crisis Group Report 29th July 2013, extracts from Agence France 1st August 2013, extract from BBC 5th August 2013, extract from Amnesty 6th August 2013, IPS News Agency report 12th August 2013 and an extract from the BBC 16th August 2013. As regards updated evidence from the Appellant, there is a further witness statement dated 30th August 2013 and a letter from the Appellant’s mother dated 24th July exhibited at page 179.
14. As can be seen from the trial bundle, much of the Respondent’s bundle is replicated there. For the avoidance of doubt, the Secretary of State relied upon the original bundle that had been produced on behalf of the Respondent before the First-tier Tribunal. No further documentation has been produced on behalf of the Secretary of State for the purposes of this appeal.
15. The bundle contained information that had not been placed before the First-tier Tribunal and there was no dispute between the parties that that material should not be admitted pursuant to Rule 15(2A) and thus formed part of the evidence that was put before the Upper Tribunal.
16. The Appellant also gave oral evidence. She adopted the witness statements referred to in the preceding paragraphs as her evidence-in-chief and confirmed that she had read those statements, had understood them and the contents of them were true when she made them. There was no further oral evidence-in-chief.
17. In cross-examination Mr Avery asked the Appellant about her account. In particular she was asked to clarify the incidents and the date of them that had occurred to her family in Zimbabwe. In particular, she had referred in her statement to a most recent incident that had occurred to her father in November 2012 and she was asked if there had been any other incident save that one. She confirmed that she had said in her statement that in March that they had been forced to attend rallies. It was put to her that between 2009 and November 2012 there had been no incidents of harm to her parents. The Appellant said that between that period, there had been destruction to the property and crops and there had been times when people had come and removed them from the house and torturing them making them go outside. When asked to clarify when the house was burned (referring to her earlier account of destruction of the property) she said in 2009. When asked about when the crops were destroyed, the Appellant could not give a date but stated it had been “after they had been to the house and burnt it they still kept coming back”. When asked to be more specific, she could not give any further dates or explanatory evidence.
18. Mr Avery referred the Appellant to the letter written by her mother (page 179 of the bundle). It was put to the Appellant that in that letter there was no reference to the Appellant being of interest specifically. The Appellant stated that “they always mention everything. They know it is the children”. When asked why that had not been put in the statement, she stated that she was asked to tell the court about what had happened during the sexual attack. It was put to her that there was no mention in the letter (from her mother) that they had threatened the Appellant. She said “It is an ongoing thing. She had said it was not safe for me”. It was put to her that if there had been a threat to her it was likely that her mother would have said so. The Appellant responded by saying “It is always about father’s connections and where you children are. When looking at the family they put us all together. That’s when it becomes a target”.
19. The Appellant was asked that if her family had been targeted for such a significant period why they had not left the area? The Appellant stated that they did not have the means to leave the area and that “Zimbabwe is a small country, they don’t have the funds, they don’t have the knowledge to be somewhere safe”. It was put to her that both she and her sister could help them financially. The Appellant refuted this suggestion stating that she was not working and had not worked since 2011 when she left her job at John Lewis. She said that even if she had had the money in 2009 there had been nowhere that the family could go to as they would be “known in the next city”. When asked if she had discussed it with them she said that she had not stating “they know that every city they will be known”. It was put to her that that was an odd position and that in those circumstances it would be open to try something. She responded by stating that it was well-known that if a family moved away from Harare they would still have the problems. She said they had attempted to move but the danger had followed them. She confirmed that the family had moved from Harare to an area where ZANU-PF were active. When asked why they would do so knowing of the problems, the Appellant stated that this was “the best option they had. They had ties and a place away. There was a lot of ZANU-PF activity going on there and since they had been there problems had been ongoing”.
20. She confirmed in her oral evidence that she had no involvement in the MDC nor did her father have any involvement in the MDC and that it was an assumption on the behalf of others based on his past employment as a teacher. Against that background she was asked why she would have a problem returning if her father had no involvement in the MDC and if she lived in an area that was not her home area. She was asked why would they seek her elsewhere in Zimbabwe? The Appellant stated “The perception is not dead. They are pursuing our family. I still have to be MK. I can be traced back to my father and there is a danger that they will locate me. I am still linked to my family”.
21. There was no re-examination. In answer to questions from myself, she confirmed that when the family left Harare they had sold the house. They did not move immediately because it took a while for them to sell the house and they had rented it out at first. The money that they obtained from the sale of the house they used to help her sister financially and to build up the property that they had moved to. She confirmed that her father was no longer a teacher and had gone into retirement in 2004. She did not know her father’s date of birth but thought he was 73 or 74. As to her circumstances, she confirmed that she had not worked since she had the job with John Lewis in 2011. That employment was as an events organiser and carrying out general administrative duties.
22. At the conclusion of the evidence I heard submissions from each of the parties. Mr Avery on behalf of the Secretary of State relied upon the refusal letter notwithstanding its age. He submitted that there was still some relevance to that document. He submitted that the first question the Tribunal would have to consider was whether or not the Appellant was giving a truthful account concerning events in Zimbabwe by reference to the most recent events. He submitted that there was a significant degree of vagueness about the events that had occurred and that was surprising given the nature of them. Her evidence concerning events that had happened in Zimbabwe post 2009 were not set out in any statements. With regard to the letter from her father in 2011, its contents are non specific and covered a long period of time including the period when the family lived in Harare. There would be no reason why people would ask about his daughter in 2011. The more recent letter from her mother, the contents when they were considered do not suggest a direct interest in the Appellant from the authorities given that she has been in the United Kingdom for a substantial period of time. The account given by the Appellant concerning her family’s difficulties, the issue remained as to why the family themselves had not relocated. The evidence from the Appellant was that the harassment and targeting of the family had gone on for a substantial period of time from the ZANU-PF yet they had moved from Harare to another area which had strong ZANU-PF connections. When they had sold the home, there was no answer to the question as to why they had not moved elsewhere. Why the family still remained in that area, given its ZANU-PF connections and the events that had been said to occur was also puzzling. It did not seem to be logical or credible. He further submitted that there was no interest in the Appellant and that was a point that was hard to take seriously and was not supported in the recent evidence via the letter.
23. He submitted that there would be no reason why the Appellant would be restricted to that area and that the issue of internal relocation was a real one. The Appellant had good qualifications and employment experience thus she could relocate to a different part of Harare, obtain employment and live independently. It is not credible that anyone would individually be looking for this Appellant given the low profile of her family and it was not reasonably likely that such interest would extend outside an area where her father is known. In the circumstances of this case, the Appellant could relocate. There is extensive case law relating to Zimbabwe showing that the conditions have improved considerably and certainly since the previous set of elections. The violence associated with the elections has been remarkably low given the history of Zimbabwe. The MDC has given up its challenge to the election results (see the documentation in the Appellant’s bundle).
24. When considering the country guidance relating to teachers (see MN) the Appellant is not a teacher. In fact her father is no longer a teacher and it is difficult to see why anyone would have any interest in her upon return.
25. In respect of the skeleton argument produced by Mr Symes, whilst the family home has been sold in Harare there is no reason why she could not go back to Harare itself or within an area it being a large city. The country guidance of CM confirmed that that would be a realistic option to relocate to. Contrary to the submissions made in the skeleton argument, Mr Avery stated that it remained a submission that the Appellant would be able to find work, support herself, and that she would not be restricted to relocation to an area where she had previously lived. Thus he invited the Tribunal to dismiss the appeal.
26. Mr Symes relied upon the helpful skeleton argument that he produced in advance of the hearing. The skeleton argument set out past history and the previous appeal hearings. At paragraphs 12 to 17 it set out country guidance and at paragraphs 18 to 20 dealt with the factual basis of her claim. Paragraphs 21 to 24 dealt with the risks faced by the Appellant at the airport based on the evidence in her case. That part of the skeleton argument submitted that as she was a person whose father had suffered serious harm as a result of imputed political opinion as an MDC supporter based on his role as a school teacher and that risks he faced were exacerbated by suspicions that his family abroad remitted funds to the MDC, as a family member of such a person she would be at risk given her association and that would be revealed under interrogation at the airport on return. It was submitted that there “may well be some institutional memory of these suspicions capable of featuring in official records”. It was further submitted that given “serious harm and threats directed towards the Appellant in the past, there was a presumption of its repetition by reference to 339K of the Immigration Rules”. Paragraphs 27 to 29 dealt with the issue of internal relocation. Within those paragraphs the general thrust of them but particularised was that internal relocation was not available to this Appellant for the reasons advanced at paragraph 29.
27. Mr Symes also made the following oral submissions. As to the past events, he submitted that she had given a credible account and there was nothing implausible about the events recounted. Concerning the “geographical filter” there was a real risk of persecution of those living in a ZANU-PF area thus the account given has some plausibility about it. Whilst it has been stated on behalf of the Secretary of State the family would have moved if those events had occurred, Mr Symes submitted that they were elderly and preferred to take their chance in an area known to them. He submitted that there was evidence given by the Appellant in her interview (question 37) concerning money that she had sent from the UK and that that placed her at risk.
28. When looking at the risk, he invited the Tribunal to take into account 339K of the Immigration Rules concerning past persecution and that objectively she met the test.
29. He submitted that the issue came down to one of relocation. In this respect he invited the Tribunal to consider the Appellant’s witness statement in which it is said that she had clear links by her name to her father and that this did not apply to her sister living in Zimbabwe who had married and therefore had a different name and was able to subsume herself within Zimbabwean society. In addition her accent has a London lilt and she would stand out in the context of a country where money was scarce and also in the light of her length of residence. As to the point made by Mr Avery concerning the prospects of employment, the point made by the Appellant in her statement was that working in the hospitality industry such as in hotels in Harare there are a number of people who would act as an informant and inform on this Appellant and from that she would receive adverse attention. The same would be true of rented accommodation that a check would be made and that would lead her to being connected to her father. She would not be able to join her sister and would be at risk of the militia who are active in Harare. In general internal relocation would be unavailable to the Appellant because of danger but also because it would be unduly harsh. She would not be able to survive as a street vendor given her characteristics. Thus she had demonstrated that she would be at real risk of persecution or serious harm upon return to Zimbabwe.
30. I reserved my determination.
The Legal Framework
Burden and Standard of Proof
31. The burden of proof rests on the Appellant to prove her case on the lower standard of a reasonable degree of likelihood, which I take to be the same as “substantial grounds for believing” or “real risk”. Where below I refer to ‘risk’ or ‘real risk’ this is to be understood as an abbreviated way of identifying: (1) whether on return there is a well-founded fear of being persecuted under Refugee Convention; (2) whether on return there are substantial grounds for believing that a person would face a real risk of suffering serious harm within the meaning of paragraph 339C of the amended Immigration Rules; and (3) whether on return there are substantial grounds for believing that a person would face a real risk of being exposed to a real risk of treatment contrary to Article 3 of ECHR. I have to consider the evidence in the round and, so far as the assessment of the Appellant’s case is concerned, place it in the context of all of the background evidence.
Internal Relocation
32. Of particular relevance in this case is paragraph 339O headed “Internal Relocation”. This states:
“i. The Secretary of State will not make:
(a) a grant of asylum if in part of the country of origin a person will not have a well-founded fear of being persecuted and the person can reasonably be expected to stay in that part of the country; or
(b) a grant of humanitarian protection if in part of the country of return a person would not face a real risk of suffering serious harm, and the person can reasonably be expected to stay in that part of the country.
ii. In examining whether a part of the country of origin or country of return meets the requirements in i. the Secretary of State, when making his decision on whether to grant asylum or humanitarian protection, will have regard to the general circumstances prevailing in that part of the country and to the personal circumstances of the person.
iii. It applies notwithstanding technical obstacles to return to the country of origin or country of return.”
33. In considering the proper approach to the issue of internal relocation I have also to apply the principles set out by the House of Lords in Januzi [2006] UKHL 5 (which adopts the criteria now contained in paragraph 339O but also contains more detailed guidance) and AH (Sudan) [2007] UKHL 49.
34. In Januzi their Lordships held that the test for whether it would be unreasonable for an asylum seeker to relocate to a safe haven within his own country, was not whether the quality of life there failed to meet the basic norms of civil, political and socio-economic human rights, but whether he would face conditions such as utter destitution or exposure to cruel or inhuman treatment, threatening his most basic human rights. There was no presumption that when persecution emanated from agents of the state or where the state encouraged or connived in that persecution by others, there could be no viable internal flight option. The greater the power of the state over all parts of the asylum seeker’s country the less viable such an option would be and vice versa.
35. In AH (Sudan) their Lordships repeated that the test to determine whether internal relocation was available was as set out in Januzi, namely whether it was reasonable to expect the Appellant to relocate or whether it would be unduly harsh to expect him to do so. The ‘unduly harsh’ test did not require conditions in the place of relocation to reach the Article 3 ECHR level. The enquiry was to be directed to the situation of the particular Appellant, whose age, gender, experience, health, skills and family ties might all be very relevant. Cases had to be assessed holistically with specific reference to personal circumstances, including past persecution or fear thereof in family and social relationships.
36. In assessing risk to an appellant whose family members have suffered persecution or serious harm it is also important to bear in mind the principles set out at Recital 27 of the Qualification Direction 2004/83/EC that:
“(Family members, merely due to their relation to the refugee, will normally be vulnerable to acts of persecution in such a manner that could be the basis for refugee status)”.
37. I have also had regard to the circumstances of the individual where that person has already been subject to persecution or serious harm and therefore falls into the category of persons to whom to Rule 339K of the Immigration Rules applies mirroring Article 4 of the Qualification Directive. That Rule is in the following terms:
“The fact that a person has already been subject to persecution or serious harm, or to direct threats of such persecution and such harm, will be regarded as a serious indication of the person’s well founded fear of persecution or real risk of suffering serious harm, unless there are good reasons to consider that such persecution or serious harm will not be repeated”.
Findings of fact and analysis of the evidence:
38. The starting point for an assessment of risk are the findings of fact made by the First-tier Tribunal that have been preserved. Those findings are set out in the determination of First-tier Tribunal Judge Perry at paragraph 60. They are as follows. The Appellant’s father was a teacher and had been a target for ZANU-PF youths. In July 2002 the family was subjected to violence when the Appellant was attacked at the family home by ZANU-PF supporters who forced their way into the house and sought to force themselves on the Appellant and her sister, beating up their father when he intervened. The police did nothing to help when the matter was reported to them. The Appellant took the opportunity to leave Zimbabwe and entered the United Kingdom on a visit visa. In January 2003 the family home was attacked by ZANU-PF supporters who wrecked the house contents and beat her father. It is asserted that they questioned her parents about her whereabouts and accused her of being sponsored by the MDC to come to the United Kingdom. In February 2003 ZANU-PF supporters returned and her sister S was the subject of a serious sexual assault. She left the home area in 2004. In 2009, after the Appellant’s parents moved to Murewa the family home was set on fire and the kitchen was burned.
39. Those are the preserved findings that are set out at paragraph 60 of the determination of the First-tier Tribunal. It is plain from the determination that the judge rejected some of the facts advanced by the Appellant as the basis for her asylum claim. That was in respect of a letter sent by the Appellant’s father dated 30th October 2011 in which the judge considered at paragraphs 64 and 68 of the determination noting that she did not find it credible that ZANU-PF youths were “looking and asking for the whereabouts of my daughter MK”. The judge did not find her father’s reference to the visit of youths in Murewa and their interest being in the Appellant being either plausible or credible.
40. It is submitted in the skeleton argument at paragraph 19 that the finding of the First-tier Tribunal that the father’s evidence that she was at a continued risk is not credible is a finding that must be revisited by the Upper Tribunal. For the purposes of this hearing, and as a result of the directions given, I have heard further evidence from the Appellant including evidence of an updated nature dealing with a further incident that she asserts has occurred in November 2012 and for the Appellant to give further evidence generally concerning the issue of risk to her arising out of the profile she asserts her father has in Zimbabwe which is imputed to her. Her evidence has been the subject of cross-examination by Mr Avery on behalf of the Respondent and I have set out earlier his submissions concerning the nature of her evidence. Therefore I am required to make further findings of fact based on the evidence I have heard and also to consider the context of the evidence as a whole when making an assessment of the risks faced to this Appellant.
41. The first incident relates to 2002 and is set against the background of the Appellant’s father’s occupation as a teacher. The background material relating to teachers and problems that they have met in Zimbabwe is set out in the refusal letter at paragraphs 50 to 63. The background evidence was also summarised by the Upper Tribunal in the most recent country guidance decision of NN (Teachers; Matabeleland/Bulawayo: risk) Zimbabwe CG [2013] UKUT 198 (IAC) where the Tribunal at paragraph 33 onwards summarised the development of the guidance relating to teachers in Zimbabwe as conditions have changed for the better or for the worse. They then went on to consider the current country evidence and the fresh evidence upon which the Appellant had relied in the appeal. It is apparent from that background material referred to by the Tribunal and also by the Secretary of State that teachers in recent years have been the subject of attacks in Zimbabwe and were targeted in postelection violence as a result of their occupation and by being linked to the MDC.
42. It is plain from the circumstances of the attack in 2002, which is accepted, that it arose as a result of the Appellant’s father’s occupation. It cannot be said that the incident arose because of the Appellant’s profile per se nor can it be said that it was due to any links with the United Kingdom because at that stage she was still resident in Zimbabwe. There was also an incident in January 2003 where the home was attacked by ZANU-PF supporters and her father was attacked and in February 2003 the Appellant’s sister was the subject of a serious sexual assault. The family remained there for a period post 2003. According to the oral evidence given by the Appellant at this hearing there were problems in selling the house that were caused also by renting it out and it took a period of six months before a sale could be achieved. The Appellant’s parents moved to Murewa in May 2004.
43. I have considered the evidence concerning the period between May 2004 to 2009. Having considered the evidence as a whole, I have reached the conclusion that there were no incidents of any significance that took place between May 2004 and the incident that occurred in 2009. I have reached that conclusion for the following reasons:-
(a) The evidence contained in the Appellant’s statement (22nd November 2011) was that harassment had continued throughout the years and in 2009 their home was set on fire and the kitchen was burnt (paragraph 8). When interviewed the Appellant was asked about the events in Murewa and in particular, whether apart from verbal harassment her parents faced any other persecutory harm. The Appellant replied that they had but the biggest was in 2009 when the place was set on fire calling them traitors and getting money sent over from the UK (see question 37). However the questions continued and at question 40 she was asked “You have told me of the 2009 event. What else happened to your parents between 2004-2009?” The reply was “Yes ZANU-PF set fire to the crop of maize. Another time he was beaten. There were so many incidents going on from 2009 up to this date”. A careful consideration of those questions in the interview between questions 37 and 40 relates solely to the period between 2004 and 2009. Whilst I would accept that during that period there was likely to be harassment and verbal abuse as claimed given that they were living in a ZANU-PF area, I am not satisfied that the account given by the Appellant in her oral evidence before me that during this time there were many incidents, up to 15 incidents, which she described as “constant persecution” that was “almost like a patrol” is not consistent with the account that she gave when interviewed in 2011.
(b) I do not find that there is a reasonable likelihood that they would have remained between 2004 and 2009 in Murewa if they had been the subject of “constant persecution” in the way that the Appellant described in her oral evidence before me. During this period of time they had access to funds as it was the period of time when the Appellant was a student in the United Kingdom. They had sold their family property and thus if they had been subjected to such persecution I am satisfied that there is a reasonable likelihood that they would have taken the opportunity to move to a different place.
(c) I also take into account that in cross-examination as noted by Mr Avery in his submissions, she was unable to give any specific examples or dates in her evidence concerning the period between 2004 and 2009.
44. I now turn to the incident that occurred in 2009 where the family home was set alight and the kitchen was burned. It is common ground that the Respondent accepted that that incident occurred. The background evidence relevant to that period of time demonstrates that ZANU-PF militias operated as “de facto enforcers” of government policies and had committed assault, torture, rape, extralegal evictions and extralegal executions without fear of punishment, the incidence of these abuses increased significantly in 2008 and continued, though at a decreased rate, in 2009”. (See Freedom in the World 2010 Zimbabwe covering events in 2009).
45. I have considered the background to this incident. As set out in the preceding paragraphs, I have not found that there were any incidents of significance between 2004 and 2009 but from the evidence would accept that in the light of the background material that the Appellant’s parents were reasonably likely to be the subject of some harassment, verbal abuse and that their crops may have been destroyed, however I do not accept the level described by the Appellant that the Appellant’s parents suffered during this period “constant persecution” in the light of her vague and non specific evidence before me and the fact that it is not consistent with the Appellant’s family remaining in that area for such a significant period of time. Whilst it has been argued by Mr Symes that this was her family home, they did obtain the proceeds which were not spent on purchasing a new home according to the Appellant’s oral evidence, but to assist in the rebuilding of their old home and could have used the proceeds to move elsewhere or at the very least join their other daughter who was living in another part of Zimbabwe at the time.
46. The Appellant’s father retired from teaching in 2004. When considering the Appellant’s factual account, it has been submitted on behalf of the Appellant that part of the circumstances that gave rise to the risk related to the Appellant’s absence and the assertion that it had been said they were receiving remittances or money from the United Kingdom.
47. I have considered the evidence in respect of this as relevant to the incident that occurred in 2009. In interview it was put to the Appellant that when ZANU-PF supporters came to the house and they had accused her parents of receiving money from the UK, it was put to her how would ZANU-PF in Murewa know that she was in the United Kingdom? The Appellant gave an explanation as follows:-
“They ask where are your children? My parents say they disowned us. The same things in Harare can travel. They have good communication. I am not sure how they do it.”
It is plain from the explanation that she gave in interview concerning the events in 2002 and 2003 that the ZANU-PF supporters in Harare knew that she had gone to the United Kingdom because the information had probably been given to them from the neighbours (see interview). It is also plain from the evidence before me that those involved in the incidents in Harare and in Murewa have not been identified or given any type of description; whether they were part of the same group, whether they were the same individuals. They have only ever been described in terms as “ZANU-PF supporters” (see interview) or “ZANU-PF youths” (see letter at F1). Against that background I do not find that it has been substantiated to the lower standard that these people involved were any linked, homogenous group with any significant personal profile or characteristics. It has not even been demonstrated that they were linked by any common theme, other than loosely being identified as “Zanu –PF supporters” or even knew each other.
48. I do not accept that information from 2002 / 2003 travelled from Harare to Murewa in the way asserted by this Appellant. I have reached that conclusion for a number of reasons. The geographical distance between Harare and Murewa would preclude that as being reasonably likely and as to the lack of profile of those concerned, either on the basis that they knew each other or that they would relay information of such an age. The Appellant had not been in Zimbabwe since 2003 and had not moved with them to Murewa in 2004. There has been nothing suggested in the evidence before me to demonstrate that the local ZANU-PF in Murewa would even be aware of her previous presence or the circumstances of the 2002/2003 attack. I find that the circumstances of the earlier incident can be distinguished because the account given by the Appellant is that neighbours in the area have told local ZANU-PF supporters/youths that the Appellant had gone to the United Kingdom. I do not find that there is a reasonable likelihood that the same neighbours would inform unidentified ZANU-PF supporters who live a significant geographical distance away following such a significant time lapse of an incident in 2002 to 2003. I find that that stretches credulity.
49. I have also considered the period from 2009 until November 2012. The Appellant made her claim for asylum on 13th October 2011 having been in the United Kingdom since 2002. By reason of that application she was interviewed by the Respondent. The interview took place on 28th October 2011. She was asked at that time when she had last spoken to her parents and she said “about four weeks ago” (question 57). At question 58 she was asked about the current situation for her parents. She said “they live day to day. They don’t know what tomorrow will be. We are a Christian family and we leave things in God’s hands and pray we will be OK”. There was no reference to any incidents occurring at the date or at the time of the interview in October 2011 dealing with events post the 2009 incident in Murewa. This was a point made on behalf of the Respondent in the refusal letter at paragraph 69 where it made reference to the incident occurring in 2009 but that her parents had remained in Zimbabwe. The Respondent noted that it was now nearly 2012 and that it had not been stated on the Appellant’s behalf that anything else had occurred during that period. The Appellant responded to that assertion in a document entitled “comments on the refusal letter” dated 2nd December 2011 which was adopted as part of her evidence. She says this:-
“At no point in interview did I say they were peaceful. My parents still live in fear. They don’t want to tell me about incidents that occur.”
I have considered the evidence about this period of time and what is said by the Appellant. I do not accept that if there had been any incidents that the Appellant would not have made reference to them either in her interview or in her statement, particularly that that dealt with the comments made in the refusal letter. The purpose of her family recounting incidents to the Appellant would be to ensure that she knew what was happening in Zimbabwe so that she did not return and put herself at risk. I find that there is a reasonable likelihood that if any incidents had occurred post 2009 that her parents would have told her about those events to ensure her safety. In the letter that her father sent on 30th October 2011 (see F1) there are no references to any incidents that occurred to them nor are there any incidents referred to in her witness statement. The evidence before the First-tier Tribunal at the hearing that took place on 6th January 2012 also makes no reference to any other incidents post 2009.
“Forced their way into our home destroying our property and beating us both which resulted in the sexual attack on my husband, to this day my husband has not recovered from this attack and remains unable to talk about it. … This area continues to be a strong area for ZANU-PF and it would be impossible to hide her”.
The letter asks that the United Kingdom allow for the Appellant to remain here for her safety.
“(1) There is no general duty of disclosure on the Secretary of State in asylum appeals generally or Country Guidance cases in particular. The extent of the Secretary of State’s obligation is set out in R v SSHD ex p Kerrouche No 1 [1997] Imm AR 610, as explained in R (ota Cindo) v IAT [2002] EWHC 246 (Admin); namely, that she must not knowingly mislead a court or tribunal by omission of material that was known or ought to have been known to her.
(2) The Country Guidance given by the Tribunal in EM and Others (Returnees) Zimbabwe CG [2011] UKUT 98 (IAC) on the position in Zimbabwe as at the end of January 2011 was not vitiated in any respect by the use made of anonymous evidence from certain sources in the Secretary of State’s Fact Finding Mission report of 2010. The Tribunal was entitled to find that there had been a durable change since RN (Returnees) Zimbabwe CG [2008] UKAIT 00083. The Country Guidance in EM does not require to be amended, as regards the position at that time, in the light of -
(a) the disclosure by the Secretary of State of any of the materials subsequently disclosed in response to the orders of the Court of Appeal and related directions of the Tribunal in the current proceedings; or
(b) any fresh material adduced by the parties in those proceedings that might have a bearing on the position at that time.
(3) The only change to the EM Country Guidance that it is necessary to make as regards the position as at the end of January 2011 arises from the judgments in RT (Zimbabwe) [2012] UKSC 38. The EM Country Guidance is, accordingly, re-stated as follows (with the change underlined in paragraph (5) below):
(1) As a general matter, there is significantly less politically motivated violence in Zimbabwe, compared with the situation considered by the AIT in RN. In particular, the evidence does not show that, as a general matter, the return of a failed asylum seeker from the United Kingdom, having no significant MDC profile, would result in that person facing a real risk of having to demonstrate loyalty to the ZANU-PF.
(2) The position is, however, likely to be otherwise in the case of a person without ZANU-PF connections, returning from the United Kingdom after a significant absence to a rural area of Zimbabwe, other than Matabeleland North or Matabeleland South. Such a person may well find it difficult to avoid adverse attention, amounting to serious ill-treatment, from ZANU-PF authority figures and those they control. The adverse attention may well involve a requirement to demonstrate loyalty to ZANU-PF, with the prospect of serious harm in the event of failure. Persons who have shown themselves not to be favourably disposed to ZANU-PF are entitled to international protection, whether or not they could and would do whatever might be necessary to demonstrate such loyalty (RT (Zimbabwe)).
(3) The situation is not uniform across the relevant rural areas and there may be reasons why a particular individual, although at first sight appearing to fall within the category described in the preceding paragraph, in reality does not do so. For example, the evidence might disclose that, in the home village, ZANU-PF power structures or other means of coercion are weak or absent.
(4) In general, a returnee from the United Kingdom to rural Matabeleland North or Matabeleland South is highly unlikely to face significant difficulty from ZANU-PF elements, including the security forces, even if the returnee is a MDC member or supporter. A person may, however, be able to show that his or her village or area is one that, unusually, is under the sway of a ZANU-PF chief, or the like.
(5) A returnee to Harare will in general face no significant difficulties, if going to a low-density or medium-density area. Whilst the socio-economic situation in high-density areas is more challenging, in general a person without ZANU-PF connections will not face significant problems there (including a “loyalty test”), unless he or she has a significant MDC profile, which might cause him or her to feature on a list of those targeted for harassment, or would otherwise engage in political activities likely to attract the adverse attention of ZANU-PF, or would be reasonably likely to engage in such activities, but for a fear of thereby coming to the adverse attention of ZANU-PF.
(6) A returnee to Bulawayo will in general not suffer the adverse attention of ZANU-PF, including the security forces, even if he or she has a significant MDC profile.
(7) The issue of what is a person’s home for the purposes of internal relocation is to be decided as a matter of fact and is not necessarily to be determined by reference to the place a person from Zimbabwe regards as his or her rural homeland. As a general matter, it is unlikely that a person with a well-founded fear of persecution in a major urban centre such as Harare will have a viable internal relocation alternative to a rural area in the Eastern provinces. Relocation to Matabeleland (including Bulawayo) may be negated by discrimination, where the returnee is Shona.
(8) Internal relocation from a rural area to Harare or (subject to what we have just said) Bulawayo is, in general, more realistic; but the socio-economic circumstances in which persons are reasonably likely to find themselves will need to be considered, in order to determine whether it would be unreasonable or unduly harsh to expect them to relocate.
(9) The economy of Zimbabwe has markedly improved since the period considered in RN. The replacement of the Zimbabwean currency by the US dollar and the South African rand has ended the recent hyperinflation. The availability of food and other goods in shops has likewise improved, as has the availability of utilities in Harare. Although these improvements are not being felt by everyone, with 15% of the population still requiring food aid, there has not been any deterioration in the humanitarian situation since late 2008. Zimbabwe has a large informal economy, ranging from street traders to home-based enterprises, which (depending on the circumstances) returnees may be expected to enter.
(10) As was the position in RN, those who are or have been teachers require to have their cases determined on the basis that this fact places them in an enhanced or heightened risk category, the significance of which will need to be assessed on an individual basis.
(11) In certain cases, persons found to be seriously lacking in credibility may properly be found as a result to have failed to show a reasonable likelihood (a) that they would not, in fact, be regarded, on return, as aligned with ZANU-PF and/or (b) that they would be returning to a socio-economic milieu in which problems with ZANU-PF will arise. This important point was identified in RN … and remains valid.
(4) In the course of deciding CM’s appeal, the present Tribunal has made an assessment of certain general matters regarding Zimbabwe as at October 2012. As a result, the following country information may be of assistance to decision-makers and judges. It is, however, not Country Guidance within the scope of Practice Direction 12 and is based on evidence which neither party claimed to be comprehensive:
(a) The picture presented by the fresh evidence as to the general position of politically motivated violence in Zimbabwe as at October 2012 does not differ in any material respect from the Country Guidance in EM.
(b) Elections are due to be held in 2013; but it is unclear when.
(c) In the light of the evidence regarding the activities of Chipangano, judicial-fact finders may need to pay particular regard to whether a person, who is reasonably likely to go to Mbare or a neighbouring high density area of Harare, will come to the adverse attention of that group; in particular, if he or she is reasonably likely to have to find employment of a kind that Chipangano seeks to control or otherwise exploit for economic, rather than political, reasons.”
The background evidence before the Upper Tribunal:
“… No one can rule out a resumption of some politically motivated violence when elections are called, there is no inevitability or even probability that elections will see a complete repetition of the actions taken in 2008.”
Conclusions:
“The CIO has taken over responsibility for the operation of immigration control at Harare Airport and Immigration Officers are being replaced by CIO officers. We accept also that one of the purposes of the CIO in monitoring arrivals at the airport is to identify those who are thought to be, for whatever reason, enemies of the regime. The aim is to detect those of interest because of an adverse military or criminal profile. The main focus of the operation is to identify those who may be of adverse interest remains those who are perceived to be politically active in support of the opposition. That anyone perceived to be a threat to or a critic of the regime will attract interest also … We have set out the evidence that indicates in whom the CIO has an interest. This will be those in respect of whom there is any reason to suspect an adverse political, criminal or military profile of the type identified in AA (2). In addition, those perceived to be associated with what have come to be identified as civil society organisations may attract adverse interest as critics of the regime (and see paragraph 282).”
“As a returnee to, at worst, a medium density suburb Harare, he would not be at risk of persecution or serious harm. Mr Mavhinga conceded that he is not aware of a single incident in low or medium density parts of the city and this picture is consistent with Professor Ranger’s evidence in October 2011, summarised at paragraph 128 of EM (and see also paragraph 100 of EM, the evidence of witness 77). There is no reported evidence suggesting that areas such as Hatfield can be compared to townships, let alone Mbare, in respect of security.”
“Whether Hatfield is regarded as a low or as a medium density suburb of Harare, it is certainly not a high density one and it is not a place where there is any reliable evidence of significant Chipangano activity or any other maligned presence that could be properly said to give rise to a real risk of CM facing an RN style loyalty challenge. There is no credible evidence that CM would be forced through economic necessity to seek work outside Hatfield, so as to come into contact with Chipangano.”
Thus the Tribunal concluded in CM at head note (5):-
“A returnee to Harare will in general face no significant difficulties, if going to a low-density or medium-density area. Whilst the socio-economic situation in high-density areas is more challenging, in general a person without ZANU-PF connections will not face significant problems there (including a “loyalty test”), unless he or she has a significant MDC profile, which might cause him or her to feature on a list of those targeted for harassment, or would otherwise engage in political activities likely to attract the adverse attention of ZANU-PF, or would be reasonably likely to engage in such activities, but for a fear of thereby coming to the adverse attention of ZANU-PF.”
“Has been responsible for acts of violence and intimidation outside Mbare on limited occasions and largely in neighbouring suburbs as Epsworth and Highfield. The backlash in September 2012 shows that the professed allegiance to ZANU-PF was not sufficient to insulate Chipangano from a crackdown on their activities. There is scant evidence that Chipangano has any significant range or influence in low or medium density suburbs of Harare, and their forays into the centre of the town are infrequent. Notwithstanding the consistent claims of directional control by ZANU-PF, we find that the evidence falls short of showing that Chipangano is an arm of the party, capable of being deployed at will to further ZANU-PF ends. … Overall Chipangano’s criminal activities, no doubt cause a considerable anxiety in high density suburbs in Harare, have not on the evidence, led to a significant rise in the overall number of human rights violations in the city.”
“Of difficulty for a person returning or otherwise going to Mbara from the United Kingdom, who is reasonably likely to have to seek employment of such a kind as to encounter Chipangano “touts” or the like. However we do not consider that any such difficulties can be said as a general matter to have any actual imputed political element, in the sense that Chipangano will be hostile to the person in question because he or she is viewed as having a particular political affiliation. In particular, there is no credible evidence to show a reasonable likelihood that Chipangano will impose on the person a political loyalty test or challenge.”
Decision
The appeal is dismissed.
Signed Date:
Upper Tribunal Judge Reeds
