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

On a renewed application for permission to appeal, the Court of Appeal held that an appellate court must not substitute its own view for a tribunal’s credibility assessment. The question is whether the findings lacked an evidential basis or were Wednesbury unreasonable. In asylum and human-rights claims, a claimant must show that documentary evidence can be relied on. Reliability is assessed in the round; a separate finding that a document is genuine, or proof of forgery to a high standard, is not necessarily required. Country guidance on Zimbabwe requires a fact-sensitive assessment. A failed asylum claim or inability to demonstrate loyalty does not automatically establish risk, particularly where the underlying account is rejected. No arguable error of law or other compelling reason was shown.

The appellant, a Zimbabwean national, claimed asylum after arriving in the United Kingdom as a visitor. She relied on MDC membership, political activity, destruction during Operation Murambatsvina, arrest and ill-treatment in Zimbabwe, and a claimed risk on return.

An Immigration Judge initially dismissed her appeal. On reconsideration, the determination was set aside for material error of law and the case was reheard. The Senior Immigration Judge then dismissed the appeal on asylum, humanitarian and human-rights grounds in a determination dated 18 February 2009.

The renewed application alleged errors in evaluating the evidence about Operation Murambatsvina, the reliability of an MDC card, and the application of Zimbabwe country guidance, including [2008] UKAIT 00083. The issue was whether any ground disclosed an arguable error of law with a reasonable prospect of success.

Application dismissed. The Court of Appeal held that the proposed appeal had no reasonable prospect of success and disclosed no other compelling reason for permission to be granted.

1. Credibility findings. A challenge to a first-instance credibility assessment raises an error of law only where the findings were unsupported by evidence or were Wednesbury unreasonable: Associated Provincial Picture Houses Limited v. Wednesbury Corporation [1948] 1 KB 223. The appellate court’s task differs from that of the trial judge. It must ask whether there was material upon which the findings could properly be made, rather than decide whether it would have believed the claimant. The Senior Immigration Judge had considered matters supporting the account and weighed them against inconsistencies, including the evidence about the applicant’s market business. Her conclusions were not obviously inconsistent with the country evidence.
2. Documentary evidence. The approach in Tanveer Ahmed [2002] UKIAT 00439 was applicable and binding. The claimant had to show that the MDC card could be relied upon, and its reliability had to be assessed against all the evidence. It was unnecessary first to decide whether the card was genuine or forged, or for the Secretary of State to prove forgery to a high degree. R v Secretary of State for the Home Department ex parte Khawaja [1984] AC 74 concerned the different context of judicial review of an immigration decision affecting liberty and did not require a different approach here.
3. Risk on return. The country guidance in RN (Zimbabwe) [2008] UKAIT 00083 required an individual and fact-sensitive assessment. A bare assertion of inability to demonstrate loyalty, or the fact of an unsuccessful asylum claim alone, did not establish a real risk. Having permissibly rejected the applicant’s account in its entirety, the Senior Immigration Judge was entitled to conclude that she would not be of interest to the Zimbabwean authorities and faced no real risk of persecution or treatment contrary to Article 3. She had considered the fact that Bulawayo was an MDC stronghold and the evidence concerning the applicant’s family.

Permission was therefore refused and the application dismissed.

1. Court of Appeal (Civil Division): Moses LJ refused permission on the papers. On renewal, Wall LJ heard further submissions and dismissed the application on 16 March 2010: [2010] EWCA Civ 255.
2. Asylum and Immigration Tribunal: Immigration Judge Turquet dismissed the appeal on 5 June 2008. Reconsideration was ordered on 20 August 2008. Designated Immigration Judge Appleyard found a material error of law on 3 December 2008, set aside the determination and directed a fresh hearing. Senior Immigration Judge Gill reheard the case and dismissed the appeal on asylum, humanitarian and human-rights grounds on 18 February 2009. No lower-court citation is stated.