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

Permission to appeal should be refused where an alleged evidential error could not have affected the result. In an informal tribunal hearing, a represented party who objects to the way material is introduced should ordinarily raise the objection at the hearing. A claim under Article 3 based on possible unavailability of appropriate treatment or infant formula must satisfy the very high threshold identified in N v SSHD [2004] 1 WLR 1182. A presently healthy child facing only a possible future risk on return did not meet that threshold.

The appellant, a Zimbabwean national, had entered the United Kingdom lawfully in 2002 but claimed asylum in 2006. Immigration Judge Zucker, on reconsideration in AIT No AA/07237/2006, rejected her account that a former family associate with ZANU-PF connections would place her at risk in Zimbabwe.

She sought permission to appeal on three grounds: the treatment of a Zimbabwean solicitors’ letter; reliance on information given by a presenting officer about immigration records; and the risk to her newborn child, arising from her HIV-positive status, if appropriate formula milk were unavailable in Zimbabwe. The central questions were whether those matters disclosed an error of law and whether the infant’s possible risk engaged Article 3.

1. Application refused. The solicitors’ letter did not materially advance the appellant’s case. Even if it had been given greater weight, it merely provided some evidence that Noreen Chiwewe existed. It did not establish her connection with the appellant or with ZANU-PF, and therefore could not have affected the decision ([5]).
2. Tribunal hearings may be conducted informally, but the informality must not cause unfairness. A represented party who objects to the manner in which material is presented should raise the objection at the hearing, so that any defect can be remedied. It was too late to raise the presenting officer’s evidence as an error of law after the hearing when counsel had had the opportunity to object ([8]).
3. The tribunal had been entitled to conclude that suitable alternative milk would probably be available in Zimbabwe, despite the economic difficulty of obtaining it. In any event, the Article 3 issue was decisive. N v SSHD [2004] 1 WLR 1182 established a very high threshold for cases involving HIV/AIDS and concern about treatment in the receiving country, even where the illness is advanced. The possible risk to a presently healthy child if returned did not come close to that standard ([10]–[11]).
4. Humanitarian considerations might in practice prevent return during the baby’s particularly vulnerable early months, but that observation did not establish an Article 3 claim. The application for permission to appeal was dismissed ([11]–[12]).

• Court of Appeal (Civil Division): On an application for permission to appeal from Immigration Judge Zucker’s reconsideration decision in AIT No AA/07237/2006, the application failed and was dismissed. The lower decision was not disturbed.