Zimbabwe Hearing in UKSC: Watch Live 18-19 June

The latest post on these cases can be found here. The rest of this post continues as originally published. On Monday 18 and Tuesday 19 June 2012, Lady Hale and Lords Hope, Kerr, Clarke, Dyson, Wilson and Reed will hear some important cases in relation to Zimbabwe.In addition to asylum and Zimbabwe, the cases – RT (Zimbabwe) & Ors (Respondents) v SSHD (Appellant) UKSC 2011/0011 and KM (Zimbabwe) (FC) (Appellant) v SSHD (Respondent) UKSC 2012/0020– also turn on the application of the Supreme Court’s past decision in HJ (Iran) v SSHD [2010] UKSC 31.

Facts

RT & Ors

The respondents are Zimbabweans who claim that they will face a real risk of persecution because they are unable or unwilling to prove their loyalty to Zanu-PF and Robert Mugabe’s dictatorship:

(1)  RT was born in 1981 and left Zimbabwe legally in February 2002. She arrived in the UK shortly afterwards and began working as a nanny. In 2005 she was refused leave to remain as a student. In February 2009, she claimed asylum which was refused. On 2 March 2010, the appeal was eventually determined against her by Manuell DIJ.

(2)  SM was born in 1982. She left Zimbabwe using a passport issued in another name and claimed asylum on arrival in April 2008. Subsequent to the refusal in November 2008, on 4 November 2009, Charlton-Brown IJ determined her appeal against her. He did not find her to be a credible witness because she had no connections to the Movement for Democratic Change (MDC) either in the UK or in Zimbabwe. Her mother was recognised as a refugee in the UK in or around 2003. SM lived in Zimbabwe without problems between 2002, when her mother left, and 2008. Moreover, it was unclear where she had resided prior to her departure from Zimbabwe.

(3)  AM was born in 1966 and he entered the UK as a visitor in February 2001. He remained here with leave as a student until November 2007 but in April 2009 he claimed asylum. On 23 March 2010, DIJ Shaerf determined AM’s appeal against him because he was not found to be a credible witness. Although AM had attended vigils outside the Zimbabwean Embassy in London and photographs of these attendances were published on-line, he was not politically active prior to his departure from Zimbabwe: he had returned without difficulty to Zimbabwe in 2003. It was also possible for AM to account for his absence from Zimbabwe by reference to his studies in the UK and the breakdown of his marriage during his time here.

KM

KM is aged 54 and his asylum claim rests on his belief that if returned he would be persecuted because he would not be able to show his allegiance to Mugabe’s regime. KM’s son was granted asylum in the UK. KM claims to have entered the UK in January 2003 on a false South African passport. He was granted 6 months leave to enter as a visitor. He claimed asylum on 20 August 2008. On 22 October 2009, following the refusal of his asylum claim, the AIT dismissed KM’s appeal against the SSHD’s decision (dated 13 February 2009) to remove him from the UK.

Issues

The Supreme Court explains (on its website) that the following issues arise in these cases:

• Whether the principles in HJ (Iran) extend to a person who has no firm political views but might be willing to lie in order to avoid persecution?

• Whether the Court of Appeal was wrong to remit the case to the Upper Tribunal?

The Court of Appeal

RT & Ors

The respondents (“appellants” in the Court of Appeal, Carnwath, Lloyd and Sullivan LJJ) claimed that despite what their real political beliefs or activities might be, there was a risk, especially in light of their long absence from Zimbabwe, that if returned they would suffer persecution because of their reluctance or inability to positively prove their loyalty to Mugabe.

The respondents submitted that it was wrong to require them to actively affirm their loyalty to Mugabe, who they did not support, or to otherwise lie to the authorities to avoid persecution (arising from political views which were imputed to them). Thus, the respondents argued that the AIT had applied the guidance contained in RN (Zimbabwe CG) [2008] UKAIT 00083 erroneously.

In RT & Ors, the Court (Carnwath, Lloyd and Sullivan LJJ, read judgment here) described “the problems posed by these cases” as “extreme” and explained that:

[53] … None of the appellants is a political refugee in the ordinary sense. In most contexts their claims to asylum would be hopeless. However, conditions in Zimbabwe, as they are described in RN are exceptional. The legality of these decisions must be decided by reference to the guidance in that case. Any changes since the period covered by that decision will be considered by the tribunal as part of its review of the country guidance. Applying RN we are satisfied that the appeals, except DM, should be allowed. Mr Norton-Taylor invited us to substitute our own decision in all or at least some of them. For the reasons given above, we agree in respect of RT, in which the claim to asylum will be allowed. We are not persuaded that course is open to us in the cases of SM and AM, where there were adverse findings of credibility. We shall accordingly remit those cases to the Upper Tribunal.

The Court of Appeal thought that if the respondents “were forced to lie about their absence of political beliefs, solely to avoid persecution”, their situation would be “covered” by the HJ (Iran) principle because even if they were prepared to lie, the issue would then arise whether they could prove their loyalty to the regime.

Thus, the Court found that these Zimbabwean asylum seekers, who were not political refugees and who (in order to avoid persecution) would be willing to lie about their political beliefs or about the absence of their political beliefs, could succeed in their asylum claims.

KM

KM appealed the AIT’s decision upholding the SSHD’s refusal of his asylum claim. Applying RN (Returnees) Zimbabwe CG [2008] UKAIT 83, the AIT had concluded that KM failed to establish any adequate factual basis to support his claim that he would be at real risk of not being able to demonstrate loyalty to Mugabe’s regime and would, therefore, also be at real risk of persecution. Moreover, the AIT also found that KM lacked credibility and that he did not fall into any of the enhanced risk categories identified in RN. The fact that KM’s son had been granted asylum on the basis of his sympathies towards the MDC did not mean that KM would be at risk upon on his return to Zimbabwe.

Whilst the SSHD accepted that it was possible that the AIT had failed to give adequate consideration assessing risk on return within the meaning of the guidance in RN (and to any risk that might arise in the event that KM was questioned on return about his son’s grant of asylum), she felt that the appeal should be allowed only to the extent of remitting the case to the tribunal. (This would allow a further opportunity to examine KM’s circumstances upon return and provide answers as to whether he would be returning to an environment where loyalty to the Mugabe regime was assumed.)

The Court of Appeal (Pill, Rix and Lloyd LJJ, read judgment here) took the view that KM was in an enhanced risk category because his son was granted asylum in the UK. It was stated that this feature pointed towards the grant of asylum and that his chances of pretending to be a Mugabe supporter were “bleak” (at [15]). Pill LJ clarified that KM could not be expected to return to Zimbabwe as a failed asylum seeker and lie about his political loyalties and his son having been granted asylum because of supporting the MDC.

But the Court also agreed with the SSHD about remitting the case to the tribunal and explained that:

[26] Notwithstanding those features, and the persuasive submissions of Mr Dove, I have come to the conclusion that remittal to the Tribunal is the appropriate course. I do so by considering the finding that the appellant lacks credibility in the context of paragraphs 229, 230 and 246 of RN. I have concluded that this is not a case in which the undisputed facts, that is return as an unsuccessful asylum seeker after a substantial time in the United Kingdom, and as the father of a man who has been granted asylum in the United Kingdom, necessarily establish a risk of persecution on return.

[28] It is for the appellant to establish the risk of persecution which involves satisfying the Tribunal that he does not come within such categories, though the standard of proof is not a demanding one (paragraph 247 of RN). He has not hitherto done so. The lack of focus on that issue, as distinct from the issue of credibility, does not end the matter because the burden of establishing risk is on the appellant.

[29] I regard the appellant’s case as a strong one and it is acknowledged that there is a risk of the son’s status becoming known. My conclusion is certainly not an indication to the Tribunal to find against him at the remittal, but this is not a case which this court can decide on the basis that there could only be one result before the Tribunal.

[30] The Tribunal, as the fact finding tribunal, should have the opportunity to consider whether, while there is an enhanced risk, that risk will not lead to persecution because of the milieu to which the appellant will be returning … Evidence of the circumstances in which the appellant would return may be received and, on that issue, a reassessment of credibility will be required.

Country Guidance

In light of the political climate in the country and the “power-sharing” agreement between Robert Mugabe and Morgan Tsvangirai, the earlier guidance set out in RN (Zimbabwe CG), inter alia, that

• Those at risk on return to Zimbabwe on account of imputed political opinion are no longer restricted to those who are perceived to be members or supporters of the MDC but include anyone who is unable to demonstrate support for or loyalty to the regime or Zanu-PF … But a bare assertion that such is the case will not suffice, especially in the case of an appellant who has been found not credible in his account of experiences in Zimbabwe …

was revised by the decision in EM and Ors (Returnees) Zimbabwe CG [2011] UKUT 98 (IAC), whereby

• 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.

Like most complex political situations where human rights are abused, a plethora of case law exists in relation to Zimbabwe. Watching the hearing will help the audience acquire real insight on the above!