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

In a sur place asylum claim, evidence that the state of origin actively monitors opposition activity abroad creates no presumption that every participant will be identified. Whether the claimant’s activities became known, and whether they would concern the foreign authorities, is an evaluative question of inference and degree. The significance of the activity bears upon both inquiries.

An appeal from the immigration tribunal lies only for error of law. An appellate court may intervene for failure to consider relevant material, consideration of immaterial material, irrationality or legally inadequate reasons. Reasons suffice when they identify the issues critical to the decision and explain their resolution. A disagreement with a permissible factual assessment cannot be converted into an error of law by presenting it as a reasons challenge.

The appellant, a Zimbabwean citizen, claimed asylum and humanitarian protection by reference to her involvement with the Movement for Democratic Change in the United Kingdom. She contended that photographs of her at vigils and her other political activities were likely to have come to the attention of Zimbabwe’s Central Intelligence Organisation.

An initial tribunal determination rejected her account of events in Zimbabwe but was ordered to be reconsidered in relation to her sur place activities. On reconsideration, Immigration Judge Khan accepted that she had joined an MDC branch and attended political events. He nevertheless found that she had not established that the Zimbabwean authorities would identify her or take an adverse interest in her limited activities. The asylum and humanitarian-protection appeals were dismissed.

The Court of Appeal considered whether the tribunal had adequately accounted for evidence of Zimbabwean surveillance in the United Kingdom and had given sufficient reasons for finding no real risk of persecution.

1. Appeal dismissed. Patten LJ, with whom Carnwath and Waller LJJ agreed, held that the tribunal had reached a permissible conclusion and disclosed no error of law.

2. The country guidance in HS required the tribunal to account for active scrutiny of MDC activities in the United Kingdom by the Zimbabwean Central Intelligence Organisation. It did not create a presumption that the monitoring system was foolproof or that every participant would be identified. In most cases there would be no claimant-specific evidence of disclosure. Whether activities had become known was therefore a matter of inference and degree. The significance of the political activity was relevant both to the likelihood of its detection and to whether it would interest those monitoring it.

3. The tribunal had balanced the evidence of surveillance against the limited nature of the appellant’s MDC involvement. It considered her branch membership, fundraising, attendance at vigils and appearance in photographs alongside many other participants. The weight assigned to those matters was for the tribunal. Its conclusion that her activities were unlikely to have become known was neither irrational nor unintelligible.

4. An appeal to the Court of Appeal lay only for error of law. Intervention was available where the tribunal omitted relevant material, considered immaterial material, reached a perverse or irrational decision in the Wednesbury sense, or failed to give proper reasons. A reasons challenge had to be distinguished from disagreement with a factual conclusion.

5. Applying English v Emery Reimbold & Strick Ltd [2002] EWCA Civ 605 and R (Iran) [2005] EWCA Civ 982, reasons must enable the appellate court to understand the decision-maker’s resolution of the issues vital to the conclusion. They need not identify every evidential factor or be lengthy.

6. The tribunal sufficiently explained why the appellant had not established a real or serious risk of persecution, whether because of her United Kingdom activities or because of any inability to demonstrate loyalty to the regime. Her attempt to challenge those factual findings as a failure to give reasons was outside the proper scope of the appeal.

1. Court of Appeal (Civil Division): The appeal was dismissed unanimously. The tribunal’s assessment disclosed no error of law and its reasons were adequate: [2009] EWCA Civ 1294.

2. Asylum and Immigration Tribunal on reconsideration: Immigration Judge Khan dismissed the claims for asylum and humanitarian protection after finding that the appellant had not established that her United Kingdom political activities would become known to, or concern, the Zimbabwean authorities.

3. Asylum and Immigration Tribunal, initial determination: Immigration Judge Telford dismissed the appeal. Senior Immigration Judge Storey subsequently ordered reconsideration of the sur place claim because adequate reasons had not been given for finding that the appellant’s United Kingdom activities created no risk.

4. Secretary of State: The claims for asylum, humanitarian protection and leave to remain were refused.