FM is a Zimbabwean national who is HIV positive. In an appeal before the First Tier Tribunal an Immigration Judge (IJ) held FM to be politically neutral and able to demonstrate loyalty to Zanu-PF militia if required to do so on return.
It was also held that so far as the appellants medical condition was concerned, the facts did not meet the high threshold demanded by the Grand Chamber decision in N v UK  47 EHRR 39 (para. 43). But, as the IJ put it, ” … the question that next arises is whether… the lack of anti-retroviral medications in Zimbabwe is caused not just by the general lack of medical resources but also from their specific restriction on a discriminatory basis…’
The IJ was persuaded that was reasonably likely. He based his decision on three pieces of evidence: (i) an expert opinion of Professor Barnett which included an undisclosed source who revealed President Mugabe thought it ‘perfectly reasonable to restrict supplies of anti-retroviral medicines to key members of the state apparatus’; (ii) a news report, and (iii) the fact FM had been denied such treatment in the past.
The IJ held that the above established a real risk of serious harm to FM not just because of the general unavailability of medication in Zimbabwe but by deliberate and discriminatory treatment ‘for which the authorities can be held responsible’. Accordingly, FM’s removal to Zimbabwe would breach Article 3 ECHR. SSHD appealed.
A different IJ held the decision was reached in error of law. In dismissive terms she put it this way:
“The so-called objective material relied on Professor Barnett is nothing more than an unsubstantiated comment which has not been disclosed such that it could be a subject to the kind of scrutiny that the European Court of Human Rights identified in NA quoted above. On the basis how this apparently crucial piece of evidence was reported, there is no way in which it could be said to be accurate, independent, reliable, objective, demonstrating an adequacy of methodology, or capable of being corroborated. I agree with the respondent that this evidence lacked weight and was clearly not sufficient to make this crucial finding for which there was no other support.”
The Court of Appeal held that these criticisms went to the weight which the first IJ attached to the evidence of Professor Barnett, however, none of this evidence was challenged by the SSHD at the hearing because she was not represented.
Further, when considering whether the IJ was entitled to place any weight on Professor Barnet’s reports, he was entitled also to have regard to the fact that there was no evidence to the contrary. Only one newspaper report supported the discrimination point but the others did not gainsay it. As the IJ noted, other evidence simply did not deal with that aspect of the matter.
Furthermore, FM’s experience was not irrelevant. In the event, the Court held the IJ’s decision to be adequately reasoned, rational and sufficiently evidenced to found a conclusion of risk on return.
In the subsequent country guidance decision of RS & Ors [Zimbabwe – AIDS] Zimbabwe CG  UK Upper Tribunal 363, the Tribunal examined a very much wider range of material and reached a different conclusion. However, as the Court observed, ‘With the benefit of hindsight one can see that the IJ’s conclusion was wrong on the merits, but that does not mean that his determination disclosed any material error of law.’ But this does mean that any case postdating RS must distinguish it.
Also, Sedley LJ noted a point of ‘concern’ about the way in which the second IJ found there to be an error of law (set out above). He observed that such a role needs to be discharged with independence of mind, but also in comity and with courtesy. He thought it ‘regrettable… that the immigration judge thought it right, in prose which seems not to have had the benefit of careful editing or proofreading, to deal in dismissive and occasional belittling terms with her colleague’s fact-findings.’ Of broader importance, Sedley LJ continued:
‘If a critique of the legal tenability of the fact-findings of an immigration judge is to be conducted by way of consideration, involving, as it may well do, arguments about the first immigration judge’s credulity or competence, it seems to me that it is much more appropriately conducted before an immigration judge of higher status.’