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

In an asylum return case, the European Convention on Human Rights Article 3 real-risk inquiry requires the evidence to be assessed as a whole. A claimant need not show that every person in the relevant class will suffer serious ill-treatment. A consistent pattern or substantial number of cases may establish risk, although some people may not suffer harm. A specialist tribunal must address material evidence capable of affecting its conclusion. Failure to engage with evidence that returnees might face violence during initial airport screening may amount to an error of law. The appeal was therefore allowed and remitted, while the tribunal’s formulation of the real-risk test was upheld.

The appellant, a Zimbabwean national whose asylum claim had been found fraudulent, challenged the second determination of the Asylum and Immigration Tribunal dismissing his Refugee Convention and human rights appeal. The case proceeded on the basis that he had no material political involvement and that his relevant characteristic was only his status as a failed asylum seeker returning involuntarily.

The central issue was whether the Tribunal had lawfully assessed the risk of serious ill-treatment, particularly its finding that airport screening was a low-risk first stage and that serious ill-treatment arose only if further suspicion led to interrogation. The appealed decision was reported as [2006] UKAIT 00061.

Disposition. The Court allowed the appeal on ground 1 and remitted the matter for further reconsideration by the same Tribunal. Permission was refused on grounds 3 and 4. It was unnecessary to determine ground 2, and no specific order was made on ground 5.

1. Real-risk test. The Tribunal’s formulation of the test was correct. The claimant did not have to establish certainty, probability, or that every involuntarily returned failed asylum seeker would suffer serious ill-treatment. The evidence could establish a real risk through a consistent pattern or a substantial number of cases, assessed in the context of the evidence as a whole. This was a correct synthesis of the approaches in Hariri v Secretary of State [2003] EWCA Civ 807 and Batayav v Secretary of State [2003] EWCA Civ 1489. Evidence concerning individual returnees could contribute to the assessment.
2. Material evidence and appellate review. The Court accepted that it was generally open to the specialist Tribunal to find that airport procedures involved a two-stage process, beginning with screening and followed by more serious interrogation where additional suspicion arose. However, the Tribunal had failed sufficiently to address important evidence from W5 and W6 that screening itself could involve kicking, beating, or coercive questioning. That evidence was potentially capable of affecting the overall evaluation and could have been determinative. Its omission therefore constituted an error of law, notwithstanding the Tribunal’s specialist experience.
3. Article 3 threshold and reassessment. The Tribunal’s conclusions about R4 might require reconsideration because they depended partly on the airport findings. The criticism concerning R19 was insubstantial. In relation to R31, trivial violence might fall below the Article 3 threshold, but an account of physical force against a detained person required proper consideration unless wholly disregarded. The principle discussed in Ribbitsch v Austria (1995) 21 EHRR 573 was relevant.
4. Remittal and future application. The reconsideration was expected to be relatively confined and was not to become a purely factual rehearing of the individual-returnee evidence in respect of which permission had been refused. The Court also cautioned that findings based on increasingly out-of-date evidence and a limited sample should not be applied uncritically to later cases.

• Court of Appeal (Civil Division) — Allowed the appellant’s further appeal on ground 1 and remitted the matter for further reconsideration. Permission was refused on grounds 3 and 4.
• Asylum and Immigration Tribunal — On 31 July 2006, dismissed the appellant’s appeal on Refugee Convention and human rights grounds in [2006] UKAIT 00061.
• Court of Appeal (Civil Division) — On 12 April 2006, allowed the Secretary of State’s appeal against the first Tribunal’s decision and remitted the case for further reconsideration.
• Asylum and Immigration Tribunal — The first Tribunal reconsidered the case in October 2005 and upheld the appellant’s claim on Refugee Convention and human rights grounds.