Nhengu v Secretary Of State For Home Department

Ill-treatment does not amount to persecution merely because it involved violence. Whether it crosses that threshold is a question of fact and degree. Exceptionally serious conduct may suffice on one occasion; less serious conduct ordinarily requires persistence or a real risk of repetition. A well-founded fear of ill-treatment does not itself establish a well-founded fear of persecution. An appellate tribunal must first identify an error in the adjudicator’s decision before substituting its own assessment based on objective evidence.

The appellant, a Zimbabwean cultural artist, claimed asylum after assaults by Zanu-PF youths connected with performances at Movement for Democratic Change rallies. An adjudicator accepted his credibility and found a well-founded fear of ill-treatment, but concluded that the past treatment was not sufficiently grave to constitute persecution and that an internal flight alternative was available. The Immigration Appeal Tribunal dismissed his appeal on 3 June 2003, while criticising the adjudicator’s treatment of future risk. The central issue before the Court of Appeal was whether the tribunal had correctly interpreted and reviewed the adjudicator’s determination.

Appeal dismissed with costs. Lord Justice Kennedy delivered the judgment. Lord Justice Chadwick and Mr Justice Maurice Kay agreed.

1. The adjudicator had reminded himself of the five separate conditions for refugee status set out by reference to Hovarth [2000] Imm AR 552. He found a well-founded fear of ill-treatment, but concluded that the treatment was not sufficiently grave to amount to persecution.
2. The distinction between ill-treatment falling short of persecution and ill-treatment crossing that threshold was legally available to the adjudicator. The Court endorsed the approach reflected in Ravichandran v Secretary of State for the Home Department [1996] Imm AR 97 and explained in Demirkaya v Secretary of State for the Home Department [1999] IAR 498. Persecution is a question of fact and degree. Exceptionally serious conduct may amount to persecution on a single occasion, whereas less serious conduct may require persistence or a real risk of repetition.
3. The Immigration Appeal Tribunal misread the adjudicator’s reference to the circumstances in which violence occurred and what could reasonably be expected in the future. That passage concerned the future likelihood and seriousness of violence, not the meaning of persecution. The adjudicator had therefore considered future risk and had found no risk of treatment more serious than that previously suffered.
4. Before substituting its own assessment on the basis of objective evidence, the tribunal had to be satisfied that the adjudicator’s decision was wrong. It could not proceed independently merely because it might have reached a different assessment. The adjudicator’s conclusion was legally open on the findings, so the tribunal should have allowed it to stand.

• Court of Appeal (Civil Division): On 3 March 2004, dismissed the appeal from the Immigration Appeal Tribunal and ordered the appellant to pay the costs.
• Immigration Appeal Tribunal: On 3 June 2003, dismissed the appellant’s appeal against the adjudicator’s determination.
• Adjudicator sitting at Birmingham: On 12 November 2002, accepted the appellant as a credible witness but dismissed his asylum claim after finding that the feared treatment did not reach the persecution threshold and that an internal flight alternative was available.