RM (Zimbabwe) & Anor v Secretary of State for the Home Department

In an asylum claim based on political activity undertaken abroad, the risk assessment must address the claimant’s likely perception by the authorities on return. It is insufficient to ask only whether the authorities are likely to monitor demonstrations, or whether the claimant is a prominent activist. Even low-level activity may create a real risk where an arbitrary regime may perceive the returnee as hostile and active enough to cross the threshold for further interrogation. Country Guidance concerning the risk of ill-treatment must be applied to that individualised threshold question. Where the first-instance reasoning has not adequately addressed that issue, permission to appeal should be granted, even if the eventual prospects of success appear weak.

A mother and son sought asylum after engaging in demonstrations and other MDC activity in the United Kingdom. Their original claims based on activity in Zimbabwe had failed, and the claims were then based entirely on sur place activity.

An Immigration Judge dismissed the claims, finding that the applicants were neither prominent nor high-profile and were unlikely to interest the Zimbabwean authorities. On a renewed application, the Court of Appeal considered whether the determination had adequately addressed the possibility that, following monitoring and identification, the applicants might be perceived as sufficiently hostile to face a second-stage interrogation and consequent ill-treatment on return.

1. Application granted. The court enlarged time because the application was out of time in circumstances where initial advice had been that there were no grounds of appeal, followed by further advice and public-funding arrangements.
2. The issue in a sur place claim is not confined to whether an oppressive regime monitors demonstrations or whether the claimant is a prominent political activist. The relevant question is what the authorities are likely to infer about the individual claimant from any information obtained.
3. Applying the approach accepted in YB (Eritrea) v SSHD [2008] EWCA Civ 360, it was arguable that systematic photography, informers and other intelligence-gathering might be assumed where objective evidence showed severe suppression of political opponents. The decisive assessment remained the individual consequence of that information.
4. The Country Guidance cases indicated that those perceived as enemies of the Zimbabwean regime faced a real risk of violent ill-treatment. The relevant question was whether these applicants might be perceived, during first-stage questioning on return, as sufficiently hostile and active to be sent for second-stage interrogation. The Immigration Judge’s conclusion that they were low-level and non-prominent participants did not, without more, fully address that threshold issue.
5. The court expressed no view that the applicants would ultimately succeed. It held only that the lower-end risk category was sufficiently uncertain and insufficiently addressed to make an appeal arguable, including for the guidance of future cases.

• Court of Appeal (Civil Division): on a renewed application, enlarged time and granted permission to appeal.
• Asylum & Immigration Tribunal: dismissed the applicants’ claims after concluding that their United Kingdom activities were low-level and unlikely to attract adverse official interest. Tribunal appeal numbers were AA/05090/2006 and AA/05042/2006.