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

Permission to appeal may be granted on a limited basis where an asylum tribunal’s assessment of sur place political activity arguably contains an error of law, even though its findings about activities in the country of origin are unassailable. A tribunal’s conclusion that participation in overseas demonstrations creates no risk on return may require examination if it depends on assumptions that the activity was opportunistic, that the foreign authorities would know of that characterisation, and that they would regard it as relevant. At the permission stage, the arguability of those issues is sufficient; the merits remain for the substantive appeal.

The appellant, a Zimbabwean national, sought permission to appeal against an Asylum and Immigration Tribunal determination dated 20 January 2008. The Tribunal rejected her account of political activism and ill-treatment in Zimbabwe, relying principally on credibility concerns and delay in claiming asylum. It also considered her political activities in the United Kingdom, including participation in demonstrations, and concluded that such activity did not necessarily create a risk on return. The central issue was whether the Tribunal had erred in its analysis of those sur place activities.

Permission granted in part. Lord Justice Longmore granted permission to appeal only in relation to the Tribunal’s analysis of the appellant’s activities in the United Kingdom. Permission was refused in relation to the findings about her activities in Zimbabwe.

1. The Tribunal’s credibility conclusion concerning the appellant’s claimed activism in Zimbabwe was described as entirely unassailable. The Court therefore refused permission on that issue.
2. The appellant’s sur place activities were largely common ground. The Tribunal had nevertheless reasoned that not every Zimbabwean photographed at demonstrations in London would be at risk on return, because the monitoring authorities might assume that some participants were supporting fabricated asylum claims.
3. That reasoning arguably depended on three assumptions: that the appellant’s activities were opportunistic; that the Zimbabwean authorities would learn of the Tribunal’s conclusion in the United Kingdom; and that those authorities would regard such opportunism as relevant. Those assumptions were worthy of examination on appeal.
4. The Court did not determine whether the Tribunal had in fact erred in law. It held only that, if the proposed argument were made good, an error of law might be established. Counsel referred to passages in HS (Zimbabwe) v SSHD [2007] UKAIT 00094 in support of that argument.

Order: application granted on the limited basis stated.

• Court of Appeal (Civil Division): Granted permission to appeal only on the arguable error-of-law issue concerning United Kingdom sur place activities, and refused permission concerning the appellant’s activities in Zimbabwe.
• Asylum and Immigration Tribunal: On 20 January 2008, rejected the appellant’s account of activism and ill-treatment in Zimbabwe and concluded that participation in demonstrations in London did not necessarily create a risk on return.