EM (Zimbabwe) v SSHD

At the permission stage, an asylum determination may be arguably flawed where it accepts that a foreign regime infiltrates opposition groups in the United Kingdom and monitors their activities, but dismisses risk solely because there is no evidence that the claimant was known to its agents. The decision-maker should assess the claimant’s accepted involvement, including its extent, rather than treat the absence of direct evidence of identification as conclusive. A challenge based on failure to consider country guidance fails where the determination shows that the guidance’s relevant distinction and findings were taken into account.

The appellant’s asylum claim was dismissed by the Asylum and Immigration Tribunal on reconsideration. The immigration judge accepted that she supported the MDC in the United Kingdom, had joined its Wolverhampton branch, and might have undertaken fundraising and attended vigils outside the Zimbabwean Embassy. The judge also accepted that President Mugabe’s supporters monitored MDC activities in the United Kingdom, but found no evidence that the appellant was known to them.

On a renewed application, the Court of Appeal considered whether the immigration judge had failed to have regard to the country guidance in HS (Returning Asylum Seekers)(Zimbabwe) CG and whether the reasons for finding that the appellant was not at risk were inadequate.

Permission to appeal granted. The court did not determine the appellant’s entitlement to asylum. It decided that the proposed appeal was arguable.

1. The complaint that the immigration judge had failed to consider HS (Returning Asylum Seekers)(Zimbabwe) CG [2007] UK AIT 00094 was not persuasive. That guidance concerned the risk to failed asylum seekers as such, but distinguished them from persons perceived to be activists in the United Kingdom opposed to the Zanu-PF regime. It referred to the regime’s infiltration of United Kingdom groups to identify opposition supporters and activists. The immigration judge’s acceptance that President Mugabe had spies in the United Kingdom monitoring MDC activities indicated that this material had been taken into account.
2. It was nevertheless arguable that the reasons for rejecting the risk claim were inadequate. It was arguably insufficient to rely simply on the absence of particular evidence that the appellant was known to the regime’s agents. Once infiltration of MDC-supporting groups and the appellant’s membership of such a group were accepted, the determination should arguably have assessed the extent of her involvement, including her activities in the Wolverhampton branch, fundraising and attendance at embassy vigils.
3. The paper refusal by Sir Richard Buxton, which relied on the limited nature of the appellant’s activities and the falsity of her claimed MDC involvement in Zimbabwe, did not remove the arguable issue. On the court’s reading, those matters were not the stated reason for the immigration judge’s decision.

Order: application granted.

• Court of Appeal (Civil Division): On a renewed application for permission to appeal, granted permission.
• Asylum and Immigration Tribunal: On reconsideration, dismissed the appellant’s asylum appeal.