FM (Zimbabwe) v Secretary of state for the Home department

An appellate court reviewing a tribunal must decide whether the determination contains a material error of law. It must not substitute its own view of the weight or merits of the evidence.

A tribunal must decide the case on the evidence available at the hearing. Later evidence or country guidance cannot retrospectively convert an intelligible assessment into an error of law. Where unchallenged evidence rationally supports a real risk that life-preserving medical treatment is deliberately and politically restricted, the tribunal need not explain every precise mechanism of implementation.

Strong disagreement with fact-finding is insufficient. Reconsideration judges must exercise independence with comity and courtesy towards judges of coordinate status.

The appellant, a Zimbabwean national living with HIV and AIDS, appealed against the refusal of her asylum claim. Immigration Judge Clarke accepted evidence that she had previously been denied anti-retroviral medication because she lacked a ZANU-PF membership card. He found a real risk of deliberate and discriminatory denial of treatment on return and allowed the appeal under Article 3.

On reconsideration, Immigration Judge Hall found a material error of law, set aside that decision and substituted a dismissal. The appeal concerned whether the first judge’s reasoning was legally inadequate or irrational because the evidence did not explain how discriminatory restrictions would be implemented, or whether the challenge amounted only to disagreement about evidential weight.

Appeal allowed. The determination of Immigration Judge Hall disclosed no material error of law. Immigration Judge Clarke’s decision allowing the appellant’s appeal was restored.

1. When assessing the adequacy of a tribunal’s reasoning, the determination must be read as a whole. Immigration Judge Clarke identified the novel issue, recognised the need to distinguish deliberate discrimination from a general lack of medical resources, and directed himself to the relevant authorities, including N v SSHD [2005] UKHL 31 and RS v SSHD [2008] EWCA Civ Division 839.
2. The tribunal had to decide the appeal on the evidence available at the July 2009 hearing. The later country guidance decision in RS & Ors [Zimbabwe - AIDS] Zimbabwe Country Guidance [2010] UK Upper Tribunal 363 [AIT], based on a much wider and mixed evidential record, could not retrospectively establish an error of law.
3. The first judge had evaluated credibility, the expert evidence and the country material, accepting some evidence and rejecting or qualifying other parts. The weight assigned to that evidence was a matter for him. There was no contradictory evidence requiring a different conclusion. He was not legally obliged to identify precisely how the discriminatory channelling of supplies would operate. The evidence could rationally support a finding of readiness and apparent ability to implement the restriction, rather than merely an aspiration.
4. Lord Justice Pitchford agreed that the underlying Article 3 issue concerned a real risk arising from intentional acts or omissions of public authorities, rather than natural illness and insufficient resources: N v UK [2008] 47 EHRR 39, paragraph 43. The Court did not decide the Article 3 merits afresh. It decided only that the first judge had made no material error of law.
5. Lord Justice Sedley agreed with both judgments and added that reconsideration requires independence of mind together with comity and courtesy towards a judge of coordinate status. The warning in AH (Sudan) [2007] UKHL 49, paragraph 30, against invading or ignoring the expertise of fact-finding tribunals applied equally in this context. Disagreement, however strongly expressed, did not establish an error of law.

Order: appeal allowed; Immigration Judge Clarke’s decision restored.

• Court of Appeal (Civil Division): On 31 January 2011, the appeal was allowed and the first immigration judge’s decision was restored.
• Upper Tribunal (Immigration and Asylum Chamber): Immigration Judge Hall’s determination dated 22 December 2009 found a material error of law in Immigration Judge Clarke’s determination and substituted a dismissal of the appeal.
• First-instance immigration appeal: Immigration Judge Clarke’s determination issued on 10 August 2009 allowed the appellant’s appeal against the refusal of asylum.