RK (Zimbabwe) v SSHD [2011] EWCA Civ 456

RK (Zimbabwe) v Secretary of State for the Home Department [2011] EWCA Civ 456

Background

RK is a national of Zimbabwe. She arrived in the United Kingdom in 2002 and claimed asylum in 2009. Between 2002 until she claimed asylum, she enjoyed leave to remain as a student. Her claim was refused by the SSHD and she appealed.

At the First Tier Tribunal (FTT) the IJ made comprehensive findings rejecting RK’s account that her brothers were affiliated to the MDC and that she was transferring money to Zimbabwe for the support of the MDC.  Nevertheless, the IJ allowed the appeal by virtue of the fact that she faced removal to Zimbabwe as a failed asylum seeker after a period of years’ residence in the United Kingdom. The SSHD appealed against this conclusion.

The Upper Tribunal agreed the above conclusion was made in error. It also found that the IJ had failed to consider RK’s sur place claim based upon her membership of Restoration of Human Rights (ROHR) which is opposed to the Mugabe regime.

The matter was remitted to another IJ of the FTT who held there were “formidable difficulties” in the way of the appellant demonstrating an inability to show loyalty to the Zanu-PF regime (as required by the country guideline case RN). As regards the sur place claim, the IJ did not accept that the appellant’s ROHR membership was genuine or that she was a genuine member or supporter, nor that her political activities in this country “were a genuine expression of her political views”.  He concluded that the appellant had failed to discharge the burden of showing that she would be at risk on return.

Held

In giving permission to appeal, the Court of Appeal observed that notwithstanding the negative credibility findings, the appellant fell within the risk category identified in paragraphs 231 – 234 of RN as a person at risk from militias or gangs.  The SSHD conceded the FTT had erred in law but RK urged the Court to allow the appeal outright.  The Court found that on the facts (as a failed asylum seeker after some years of residence in the United Kingdom) would cause her difficulty, ‘the possibility of sufficiently demonstrating loyalty to the regime could not be excluded’ it held that another Court of Appeal decision, RT (Zimbabwe) must be considered. The Court interpreted RT:

‘..a person who is able to demonstrate loyalty to the regime, but only by lying as to his political beliefs (or their absence), will not on that account be denied asylum.  With respect, however, it seems to me that cases of this kind need to be approached with a considerable degree of caution.  The court in RT was not laying down a general rule to the effect that any asylum-seeker returned to Zimbabwe who will be in a position to avoid risk of persecution only by falsely claiming to support the regime will be entitled to asylum.  That would be not far distant from a more startling proposition, that only actual supporters of the regime may be safely returned.  It remains the case, as was said at paragraph 230 of RN, that “each case will turn on its own facts and the particular circumstances of the individual are to be assessed as a whole”.  There may be nuances, or degrees, of political loyalty or even of political indifference; there may be questions as to what a returnee’s family or associates may say or do.  Giving an exaggerated, even a false, impression of loyalty in order to avoid persecution may on one particular set of facts be offensive, and on another set of facts inoffensive, to the conscience of the court.    

The Court also helpfully stressed that such judgments must be made with regard to nature of the regime under consideration in any claim for protection:

“…there are regimes so oppressive as to take the take the line “If you are not for us, you are against us” and are so efficient (by the use of informers, secret police and so on) in their tyranny that the entire population must either actually be for or must dissemble. 

Whether a regime has reached that point depends acutely on current country guidance.  And whether if a particular individual if returned will be at real risk is a matter which calls for close examination.  If the individual is not truthful then the tribunal will have to consider the objective facts all the more carefully.”

About jcwi

Joint Council for the Welfare of Immigrants is a key campaigning voice in the field of immigration, asylum and nationality law and policy. It is completely independent from government funding, remaining entirely free from government influence. View all posts by jcwi

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