Khumalo v Secretary Of State For Home Department

In assessing whether an asylum claimant has a well-founded fear of future persecution, past events are ordinarily a legitimate and sensible starting point, particularly where country conditions remain unchanged. The decision-maker must nevertheless address the future risk directly. An Immigration Appeal Tribunal’s factual assessment is not open to challenge merely because another case involving similar circumstances reached a different result; each case is fact-sensitive. On an appeal limited to a point of law, the court cannot assess fresh evidence that was not before the Tribunal. A possible fresh application to the Secretary of State is a separate matter.

The applicant, a Zimbabwean primary-school teacher and MDC supporter, sought asylum in the United Kingdom after harassment by Zanu-PF supporters at the rural school where she worked. A special adjudicator accepted that she had been intimidated but found that the treatment was neither sufficiently serious nor persistent to amount to persecution. He considered that Bulawayo provided a safe internal flight alternative. The Immigration Appeal Tribunal upheld that decision on 7 January 2002. The applicant sought permission to appeal on alleged errors concerning future risk, comparison with MM, fresh evidence about Bulawayo, and the internal flight assessment.

1. Permission refused. The Court of Appeal agreed with the single Lady Justice who had refused permission to appeal.
2. The assessment of past persecution is ordinarily a legitimate and sensible starting point when deciding whether an applicant has a well-founded fear of future persecution. Past events are especially relevant where country conditions have not changed. The adjudicator and Tribunal had considered the future risk and were entitled to find that it was merely theoretical and that the applicant had not discharged the burden of proof.
3. MM was distinguishable on its facts. The present applicant’s conduct towards pupils did not amount to the conduct in MM, where the teacher was passing on an anti-government message regarded as sedition. In any event, MM was not binding on the Tribunal, and asylum cases of this kind are fact-sensitive.
4. The internal flight challenge disclosed no error of law. The findings that Bulawayo was safe and that relocation there would not be unduly harsh could not be challenged on the material before the Tribunal. On an appeal confined to a point of law, the court could not assess fresh evidence that had not been before the Tribunal. A fresh application to the Home Secretary might raise a different question.
5. The judge also observed, obiter, that the Legal Services Commission ought to have considered the matters identified in Ullah v Secretary of State for the Home Department when granting legal aid.

• Court of Appeal (Civil Division): permission to appeal refused on 14 May 2002.
• Immigration Appeal Tribunal: appeal dismissed on 7 January 2002.
• Special adjudicator: appeal dismissed and refusal of asylum and permission to enter effectively affirmed on 30 July 2001.