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

Where an immigration decision is withdrawn and the country guidance underlying the tribunal decision has been superseded, continuation of the appeal is ordinarily inappropriate. The case should be reassessed through a fresh decision-making process using the current guidance and any more recent country material. A court considering permission to appeal need not examine alleged errors in superseded guidance or the individual assessment where a successful appeal could realistically achieve no more than remittal. Refusal of permission may therefore end the existing proceedings and permit a fresh decision, followed, if adverse, by a further right of appeal.

HS claimed asylum and protection under article 3 on the basis that return to Zimbabwe would expose her to persecution or ill-treatment because she had sought asylum in the United Kingdom. The Secretary of State rejected her claim in February 2006. Although an immigration judge initially allowed her appeal, reconsideration was ordered; the Asylum and Immigration Tribunal subsequently dismissed the appeal in November 2007 under country guidance later superseded by RN (Returnees) Zimbabwe CG [2008] UKAIT 00083.

After the Secretary of State withdrew the original decision and proposed a fresh decision applying the new guidance, the parties disagreed whether the proceedings were academic, should be withdrawn, or should be remitted. The central issue was how the Court of Appeal should deal with the renewed application for permission to appeal in those circumstances.

1. Renewed application refused. The existing proceedings should not continue. The country guidance challenged in the proposed appeal had been superseded, and HS’s case required reassessment as a whole under the new guidance.
2. Extended argument about whether the former guidance contained an error of law, or whether the tribunal mishandled individual features of HS’s case, would serve no useful purpose. Even if permission were granted and the appeal succeeded, the realistic remedy would be remittal. There was no realistic prospect of the court substituting its own decision that HS was entitled to succeed.
3. The Secretary of State’s proposed course was more sensible. Withdrawal of the original immigration decision would permit a fresh decision. If favourable, the matter would end; if adverse, the new decision would carry a right of appeal to the tribunal, which could consider the case afresh on the basis of the new decision, the new guidance and any more recent material on conditions in Zimbabwe.
4. Remittal to the tribunal was unavailable at that stage without the Secretary of State’s consent and would in any event be less satisfactory than a fresh start. The proposed six-month period for the fresh decision did not justify continuing the existing proceedings. The renewed application for permission to appeal was therefore refused.

• Court of Appeal (Civil Division): The renewed application for permission to appeal was refused in [2009] EWCA Civ 308.
• Asylum and Immigration Tribunal: Following reconsideration, HS’s appeal was dismissed in November 2007 under the then applicable country guidance.