SC (Zimbabwe) v Secretary of State for the Home Department

On an appeal from an asylum reconsideration, the court must identify the actual legal error said to have vitiated the tribunal’s decision. It should not substitute its own view of the facts or speculate about what the tribunal might have decided on an unargued basis.

A finding that a person who previously worked as a teacher may be perceived at the point of return as a supporter of an opposition party can, on the evidence, support a finding of a real risk of persecution. The tribunal is not necessarily required to distinguish between a practising teacher and a former teacher where its findings establish a risk arising from identification at the airport.

The appellant, a Zimbabwean national suffering from HIV and AIDS, appealed against an Asylum and Immigration Tribunal decision dismissing her appeal against refusal of asylum and human-rights claims. An earlier immigration judge had allowed the appeal, finding a well-founded fear of persecution based on the risk that she would be perceived as associated with the Movement for Democratic Change because she had been a teacher.

On reconsideration, the AIT found a material error of law in the earlier decision and reheard the appeal. Immigration Judge Boyd QC dismissed it. The central issue was whether the first immigration judge had erroneously treated all teachers as at risk, or had instead made a permissible finding concerning the appellant’s likely identification as an opposition supporter at Harare Airport.

1. Appeal allowed. Lord Justice Hooper held that the AIT’s conclusion that the first immigration judge had made an error of law was flawed. The first judge had not treated every teacher, regardless of political allegiance, as unable safely to return. His reasoning was directed to the appellant’s possible identification at Harare Airport as a teacher and, because she was not a supporter of ZANU-PF, her consequent perception as a supporter of the Movement for Democratic Change.
2. The country material entitled the first judge to infer a real risk that a person who had taught in Zimbabwe and was not a ZANU-PF supporter would be perceived at the airport as an opposition supporter and would face the consequences identified in the determination. The judge was not required, on those findings, to distinguish between a practising teacher and a former teacher.
3. The respondent’s arguments concerning the first judge’s failure to explain the airport risk in greater detail, the country-guidance decision in SM, adverse credibility findings, and incomplete findings of fact did not establish the error identified by the AIT. The Court should not second-guess what the AIT might have decided on matters that had not been identified as errors of law.
4. Lord Justice Maurice Kay agreed. He emphasised that the determination was an airport case: the appellant would probably be identified as a teacher from her passport, and the available country material supported the inference that she would probably be perceived as an opposition supporter and therefore at relevant risk. Lord Justice Tuckey agreed for the reasons given in both judgments.
5. For completeness, Maurice Kay LJ referred to the need for restraint in onward appeals, as stated by Lord Justice Carnwath in Mukarkar v Secretary of State for the Home Department. That guidance was not necessary to the disposal of this appeal.

• Asylum and Immigration Tribunal: On reconsideration, Immigration Judge Boyd QC dismissed the appellant’s appeal against refusal of asylum and human-rights claims.
• Court of Appeal (Civil Division): The Court allowed the appeal, holding that the AIT had wrongly identified a material error of law in the earlier immigration judge’s determination.