MS (Zimbabwe) v The Secretary of State for the Home Department

On a remittal, earlier factual findings must be read in their full context. Statements that an asylum claimant had little political interest or no political profile, made while rejecting an account of political activity, do not necessarily constitute positive findings of political neutrality. The claimant’s actual political position may remain unresolved.

A tribunal must assess risk on the accepted facts and evidence. It may not fill an evidential gap through speculation or by selecting fragments from a rejected account. A remitting order must also be interpreted from its terms and the materials available to the tribunal.

The appellant, a Zimbabwean citizen, entered the United Kingdom in 2002 and later claimed asylum based on alleged association with the MDC and risk on return. An Immigration Judge rejected the core account, finding that she had little or no interest in politics and no political profile.

Following an earlier appeal, the Court of Appeal made a consent order remitting the statutory appeal for reconsideration in light of RN (Zimbabwe), on the basis of the factual findings made by Immigration Judge McDade. The resumed reconsideration by the Upper Tribunal Immigration and Asylum Chamber concluded that the findings did not establish a risk of persecution and dismissed the appeal.

The issue was whether the Upper Tribunal had exceeded the scope of the remittal, and whether the earlier findings required it to treat the appellant as politically neutral and unable to demonstrate loyalty to the regime.

Appeal dismissed. Carnwath LJ gave the leading judgment. Jacob LJ and Stanley Burnton LJ agreed.

1. Earlier factual findings cannot be detached from the context in which they were made. The findings that the appellant had little or no interest in politics and no political profile were made while rejecting her account of MDC support and persecution. They were not positive findings that she was politically neutral.
2. The findings could properly be understood as meaning that the appellant’s account was not believed, leaving her true political position unresolved. They therefore did not exclude the possibility of allegiance to Zanu-PF, so far as relevant to whether she had established an inability to demonstrate loyalty to the regime.
3. The Upper Tribunal was entitled to assess the remaining evidence and to refuse to infer a risk of persecution where no credible evidence established the appellant’s political allegiance, family circumstances or inability to demonstrate loyalty. Its refusal to speculate or to cherry-pick parts of a substantially rejected account was not open to successful challenge.
4. The tribunal had to interpret the consent order and its supporting statement of reasons using the materials before it. The pre-order correspondence and the appellant’s earlier skeleton argument had not been placed before it and could not enlarge the order. The tribunal was accordingly entitled to conduct the resumed reconsideration on the basis of the earlier findings as properly understood.

The appeal was dismissed.

1. Court of Appeal (Civil Division): dismissed the appellant’s appeal.
2. Upper Tribunal Immigration and Asylum Chamber: on resumed reconsideration, dismissed the statutory appeal after concluding that the factual findings did not establish a real risk of persecution.
3. Earlier Court of Appeal order: by consent, remitted the appeal to the tribunal for reconsideration in light of RN (Zimbabwe), on the basis of the factual findings made by Immigration Judge McDade.