Case No: C5/2008/0338
Neutral Citation Number: [2008] EWCA Civ 824
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ASYLUM & IMMIGRATION TRIBUNAL
[AIT Nos. AA/05090/2006;AA/05042/2006]

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Thursday, 26th June 2008

Before:

LORD JUSTICE SEDLEY
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Between:

	RM (ZIMBABWE) & ANR	Appellants
	
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SECRETARY OF STATE
FOR THE HOME DEPARTMENT	

Respondent	

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Mr A Goodman (instructed by Sutovic & Hartigan) appeared on behalf of the Appellant.

THE RESPONDENT DID NOT APPEAR AND WAS NOT REPRESENTED.

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Judgment

Lord Justice Sedley:

1.	This is a renewed application, which has been made with skill by Mr Goodman, for permission to appeal on the basis solely of MDC activities sur place, giving rise, he submits, to a fear of ill-treatment or worse if, in the present continuing situation in Zimbabwe, these two applicants are returned.

2.	The application is out of time because counsel initially, and if I may so at first sight unsurprisingly, advised that there were no grounds for appeal.  Time was then taken up in fresh counsel giving advice and in obtaining public funding.  In the circumstances it seems to me appropriate to enlarge time.  

3.	The applicants are mother and son; the son is now 21.  The mother arrived in 1998 as a visitor and remained here as a student until, following refusal of a further extension in 2004, she overstayed and finally claimed asylum in 2006.  Her son claimed asylum at the same time, having been here since 2001, first as a visitor and thereafter as a repeat applicant for leave to remain.  The immigration history is unattractive, which makes it unsurprising that a dim view was taken of the merits.  However that is not the end of the story.

4.	Both claims were initially based on alleged MDC activity in Zimbabwe, but in the light of the findings that were made they are now entirely based on demonstrating against the regime while in this country.  

5.	I want to say something about the Appellant’s Notice and the grounds.  There is an annexe to the Appellant’s Notice headed “Grounds of appeal”.  It consists of nine closely typed pages and it is not until you get to paragraph 22 that you find anything that can be called grounds.  The rest is a skeleton argument.  It is in my view a dereliction of counsel’s duty to the court to roll the two up into a single document.  The grounds and the argument are two separate things.

6.	The grounds are, in substance, that each applicant has engaged in MDC activities while here which, if he or she is questioned about them on return, will expose them to severe ill-treatment.  The existence and extent of such a risk has been the subject of a prolonged series of AIT Country Guidance decisions, but the present case turned on a prior question: namely whether the activities, whether admitted by the applicants or reported to the CIO by informants, are to any degree likely to suggest to the Zimbabwe police or security services that either applicant is a threat to the Mugabe regime, making the assumption that that regime is still in power.

7.	It is not in dispute, I think, that even opportunistic oppositionism sur place is capable of creating or enhancing an asylum claim.  Immigration Judge Monson, on the material reconsideration in this case, said at paragraph 13, page 36 of the bundle: 

“In my judgment there are two inter-related issues: the nature and degree of the appellant’s involvement in visible opposition to the current Zimbabwean regime; and whether, and if so to what extent, embassy officials and/or intelligence operatives carry out surveillance and monitoring of anti government protesters in London.”

He noted in detail the photographic evidence from which the applicants were able to be identified but then said at paragraph 25: 

“In order for the appellants to be at risk on return on account of their attendances at the Vigil (or in the case of the first appellant, on account of an appearance at an MDC meeting attended by MDC leaders] it is necessary to postulate that the current regime has the will, the manpower and the resources to monitor attendees at the Vigil, or those attending MDC meetings in London, with a view to establishing their identities, and passing the collated information (including photographic evidence) back to the authorities at home.  It is also necessary to postulate the existence of a system in Zimbabwe whereby such information is processed in a way which enables the authorities at Harare airport to recognise that certain returnees have participated in low-level MDC/anti-government activity abroad.”

8.	I accept that this is arguably not the right approach to sur place activity against the legation of an oppressive regime.  In YB (Eritrea) v SSHD [2008] EWCA Civ 360 I said, with the agreement of the other members of the court, at paragraph 18:

“As has been seen (§7 above), the tribunal, while accepting that the appellant’s political activity in this country was genuine, were not prepared to accept in the absence of positive evidence that the Eritrean authorities had ‘the means and the inclination’ to monitor such activities as a demonstration outside their embassy, or that they would be able to identify the appellant from photographs of the demonstration.  In my judgment, and without disrespect to what is a specialist tribunal, this is a finding which risks losing contact with reality.  Where, as here, the tribunal has objective evidence which ‘paints a bleak picture of the suppression of political opponents’ by a named government, it requires little or no evidence or speculation to arrive at a strong possibility -- and perhaps more -- that its foreign legations not only film or photograph their nationals who demonstrate in public against the regime but have informers among expatriate oppositionist organisations who can name the people who are filmed or photographed.  Similarly it does not require affirmative evidence to establish a probability that the intelligence services of such states monitor the internet for information about oppositionist groups.  The real question in most cases will be what follows for the individual claimant.  If, for example, any information reaching the embassy is likely to be that the claimant identified in a photograph is a hanger-on with no real commitment to the oppositionist cause, that will go directly to the issue flagged up by art 4(3)(d) of the Directive.”

9.	What I commended there, however, seems to me to be pretty much what Immigration Judge Monson in the present case went on to do.  At paragraph 26 he said:

“It is inherently improbable that the Zimbabwean government has an adverse interest in Vigil attendees or low-level MDC supporters in London.  If the appellants were prominent and high-profile campaigners against the government, the position might be different.  But they are neither prominent nor high profile.”

He went on to look at the case of HB (Ethiopia) v SSHD [2004] UKIAT 00235 and to compare the present case with it.  

10.	The necessary preliminary to any such monitoring as the Immigration Judge was here considering is of course a systematic recording of all demonstrators.  But what will then follow, absent other evidence, will be the sifting-out of those who do not matter to the regime.  It is clear that in the Immigration Judge’s view in the present case the two applicants fell into that category.  What has however persuaded me that this is a case in which I ought to give permission to appeal is Mr Goodman’s argument that even this may not be enough.  He relies on the AIT’s decision in the Country Guidance case of HS (returning asylum seekers) Zimbabwe CG [2007] UKAIT 00094.  At paragraph 102 the Tribunal said : 

“The evidence concerning the CIO establishes clearly that anyone who comes to the attention of the CIO and is perceived to be an enemy of the regime faces a very real risk of being subjected to physical ill-treatment.  The evidence demonstrates also that although the range of people perceived to be enemies of the regime has widened, it is those seen to be leaders, activists, and those actively supporting the MDC who are the principal focus of the apparatus deployed to secure the continued authority of President Mugabe’s regime.”

So this area of risk too depends upon the anticipated perception of any single returnee by the regime.  

11.	The same seems to be the case in the formulation in AA (Risk for involuntary returnees) Zimbabwe CG [2006] UKAIT 00061 at paragraph 249, which is set out at paragraph 34 of the determination in HS: 

“The deportee will be of interest [at the first stage interrogation] if questioning reveals that the deportee has a political profile considered adverse to the Zimbabwean regime”.

At 253 of AA the AIT went on: 

“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.”

12.	In the earlier case, which I understand still to be standing, of SM (MDC --internal flight -- risk categories) Zimbabwe CG [2005] UKIAT 00100, at paragraph 43 the Tribunal said:

“In a number of cases the Tribunal has drawn a distinction between low level and high level political activities.   The situation in Zimbabwe is arbitrary and unpredictable and in these circumstances such a distinction is not determinative.  The phrase "low level activities" is sometimes used as a way of describing someone whose background and profile is such that it is thought that he would not be of interest to the authorities but someone whose political activities may have been at a low level may have become of interest to the authorities.”

13.	Mr Goodman has persuaded me that there is enough uncertainty in this lower end of the risk category to make it at least arguable that more was required before these cases could be dismissed by the Immigration Judge than appears in paragraph 26.  In other words, let it be assumed that it is highly likely that the regime photographs demonstrators against its legation in this country;  let it be assumed that it has informers which who identify them; and let it be assumed that those informers describe what the Immigration Judge found in this case, namely that these two applicants are late arrivals on the scene, with every appearance of seeking to shore up an asylum claim by exposing themselves to apparent risk, an activity which does not reflect any serious level of organised oppositional activity, is it nevertheless the case that this arbitrary and despotic regime’s police, on a first-stage interrogation on return to Harare airport, might perceive these people as sufficiently hostile and sufficiently active in their hostility to the regime to send them for a second-stage interrogation?  If there is a risk of that happening then it is quite clear on the evidence and the decided Country Guidance cases that the risk of violent ill-treatment is real.  The question is whether there is a risk that these people will cross that threshold.

14.	It may very well be that either on the extant findings or on further findings these two applicants will be held not to be even within that area of risk but it is an area of risk which it seems to me at the moment is not fully addressed and ought, as much in the interests of other cases as of the present two cases, to be considered by this court.  I hold out no high hope for the applicants that they are going to succeed in their endeavours, but it does seem to me to be a question that this court should look at.

Order: Application granted