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

On a renewed application for permission to appeal in an asylum case, the Court of Appeal held that its task was ordinarily confined to identifying an error of law in the AIT decision on the material before the tribunal. It could not reweigh the evidence or receive new evidence merely because country conditions had deteriorated. An error in categorising ill-treatment as political was immaterial where the evidence did not establish a personal risk of persecution. Fresh evidence capable of materially changing an asylum claim should ordinarily be presented to the Secretary of State under the fresh-claim procedure. A discretionary refusal to grant asylum could not be challenged merely because the applicant wanted the discretion exercised differently. The application was also substantially out of time, which independently justified refusal.

The appellant arrived in the United Kingdom from Zimbabwe in 2000 as a visitor and later remained unlawfully. Her asylum application in 2006 was refused. Immigration Judge Osborne dismissed her appeal, and on reconsideration Senior Immigration Judge Eshun found no material error of law, although she identified an immaterial error concerning the categorisation of ill-treatment of political opponents.

The appellant renewed her application for permission to appeal. She relied on alleged persecution connected with her father’s political activities, evidence of rape by ZANU PF militants, worsening conditions in Zimbabwe, and an asserted discretion to grant asylum. The central issues were whether the AIT had made a material error of law, whether fresh evidence could be received, and whether the Secretary of State’s discretion was amenable to challenge.

1. Application out of time. The renewed application was made many weeks late without a good reason. That was independently a compelling reason to refuse permission.
2. Material error of law. The Senior Immigration Judge was right to find that the first Immigration Judge had erred in declining to categorise the ill-treatment of opponents of the ZANU PF regime as political. The error was immaterial because the relevant legal question was whether the appellant personally faced a real risk of persecution. The evidence did not establish that her father had suffered persecution or that she would consequently be at risk. Her later statement that her father was hiding did not itself establish a real risk to her. The Immigration Judge was entitled to approach the rape evidence cautiously in light of its repeated similar circumstances and the appellant’s immigration history.
3. Fresh evidence. The Court of Appeal was ordinarily concerned only with whether the AIT had made an error of law on the material before it. It was not concerned with whether it would have reached a different conclusion on the evidence. New evidence which seriously changed the asylum case could instead be considered by the Secretary of State under the rules governing fresh claims.
4. Discretion to grant asylum. The assertion that the Secretary of State should have granted asylum in the exercise of discretion disclosed no legal basis for intervention. The existence of a discretion necessarily meant that the decision-maker had a choice, and the court could not interfere simply because the choice was adverse to the appellant.

Permission to appeal was refused. Any genuinely new facts or evidence could be raised through the fresh-claim procedure.

• Court of Appeal (Civil Division) — Renewed application for permission to appeal refused: [2008] EWCA Civ 768.
• Asylum and Immigration Tribunal — Immigration Judge Osborne dismissed the appeal against refusal of asylum. On reconsideration, Senior Immigration Judge Eshun found no material error of law in that decision, while recognising an immaterial error concerning the categorisation of political ill-treatment (AIT No: AA/03869/2007).