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

An appellate tribunal must engage with material evidence capable of affecting its findings on risk. Background evidence need not be cited expressly if it can properly be treated as part of, or explanatory of, the determination, but the court must be able to tell that the material was considered. Where important expert evidence or a relevant country-guidance decision may support a favourable risk assessment, failure to address it may disclose an arguable error of law. Immigration history and adverse credibility findings do not remove the obligation to assess objectively whether the claimant faces persecution or treatment contrary to article 3. Permission to appeal may be granted where those issues are properly arguable, even though the claimant’s case-specific history is unattractive.

The appellant, a Zimbabwean teacher who claimed to be an MDC supporter, appealed from a decision of Immigration Judge Boyd QC following reconsideration of an earlier favourable decision by Immigration Judge Blackford. Blackford had accepted that she had encountered politically related trouble and had allowed the asylum and human-rights appeals on the basis that non-ZANU-PF teachers faced a risk of persecution for imputed political opinion. Reconsideration treated that conclusion as an error of law.

Boyd QC later rejected the claims, finding that any MDC activity was at most low level, that the appellant would attract no interest on return, and that HIV treatment would generally be available. The Court of Appeal considered whether the determinations had adequately addressed Professor Terence Ranger’s report and SM (MDC - internal flight - risk categories) Zimbabwe CG [2005] UKIAT 00100, and whether the fresh determination had lawfully assessed the risks to the appellant and her daughter.

The appeal arose from the Asylum and Immigration Tribunal, case number [AIT No. AS/03593/2005]. The central issue was whether the case-specific grounds disclosed arguable errors of law.

1. Permission granted. The appellant showed an arguable case that the first-stage reconsideration had wrongly identified an error of law. The material before Immigration Judge Blackford included Professor Terence Ranger’s report, which gave substance to his conclusion concerning the risk to non-ZANU-PF teachers. The decision in SM was also capable of supporting that conclusion and arguably should have been considered.
2. Background material not expressly referred to may nevertheless form part of, or explain, a determination. The same approach applies whether the determination is favourable or unfavourable to the applicant. If the report and SM were part of the material from which the first determination derived its conclusion, there was an arguable case that no error of law had been shown.
3. The second-stage determination was also arguably flawed because it did not address either SM or Professor Ranger’s report, despite recording that SM had been relied on and despite the first-stage tribunal’s reference to it. That omission might represent a continuing failure to engage with important evidence.
4. The Court also stressed that the appellant’s immigration history and adverse findings about the timing and purpose of her asylum claim did not determine the objective risk questions. The tribunal still had to assess whether, on the facts, her status as a teacher and low-level MDC activist created a risk of persecution, and whether the medical position gave rise to a breach of article 3. The claims had been rejected factually, but the adequacy of that assessment was arguable.
5. The case-specific permission issues did not need to await the outcome in AA 3. The separate risk-on-return issue was left subject to that outcome if the other grounds failed. Order: application granted.

• Court of Appeal (Civil Division): On 30 April 2007, permission to appeal was granted from the Asylum and Immigration Tribunal decision identified as [AIT No. AS/03593/2005]. The Court of Appeal directed that the risk-on-return issue should continue to abide the outcome of AA 3 if the other grounds failed.