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

An appellate court may stay a renewed permission application where an authoritative pending decision may alter the legal basis for an extensive factual inquiry. The stay is discretionary and case-specific. It does not follow that every asylum or immigration appeal raising an Article 3 issue should be stayed. Rapidly changing country conditions and materially outdated evidence may reinforce the justification for waiting before reaching firm conclusions.

The appeal arose from an Asylum and Immigration Tribunal country-guidance determination concerning the return of failed asylum seekers to Zimbabwe. The Tribunal broadly upheld the view that such persons could be safely returned. A single Lord Justice refused permission, treating the grounds as factual challenges presented as errors of law.

On renewal, the Court considered the effect of the Court of Appeal’s decision in MT (Algeria) v SSHD, subsequently identified as MT, RB & U v SSHD [2007] EWCA Civ 808, reported at [2008] 2 WLR 1835. The House of Lords had granted permission to appeal on the proper scope of appellate review of fact-finding in Convention cases. The central issue was whether the renewed application should await that decision.

1. Stay granted. The renewed application for permission to appeal was stayed pending the House of Lords’ determination of the appeal in RB (Algeria), or further order. The decision was temporary and concerned case management; it did not determine the merits of the Zimbabwe return issue.
2. At the time the grounds were drafted, the challenge was framed in Wednesbury terms, alleging failures to consider evidence, improper assessment of witnesses and unfair or unbalanced reasoning. In MT (Algeria) v SSHD [2008] 2 WLR 1835, the Court of Appeal had rejected the argument that an appellate court with jurisdiction limited to issues of law should nevertheless review whether the lower tribunal’s factual conclusions were correct. The House of Lords’ grant of permission meant that the proper approach was now in doubt.
3. It was appropriate to wait where proceeding would require an extensive and burdensome inquiry which might be conducted on a legal basis later shown to be wrong. The court emphasised that the possible MT point did not require a stay in every asylum or immigration appeal raising an Article 3 issue. The decision had to depend on the nature of the individual case.
4. The rapidly changing situation in Zimbabwe and the age of the evidence were material. The evidence had been gathered almost twelve months earlier, and reaching firm conclusions about present conditions on the basis of it risked becoming artificial. The Court therefore exercised its discretion to grant the stay.
5. The Court referred to the accepted Article 3 principle that a real risk of torture on return would make return impermissible, but it did not determine whether such a risk existed in this case.

• Court of Appeal (Civil Division) — A single Lord Justice refused permission to appeal on paper. On renewal, the Court stayed the application pending the House of Lords’ decision in RB (Algeria), or further order.
• Asylum and Immigration Tribunal — The Tribunal made a country-guidance determination concerning return to Zimbabwe and broadly upheld the previous view that failed asylum seekers could be safely returned.