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

A failed asylum seeker returning to Zimbabwe may face an enhanced risk because he may be unable to demonstrate loyalty to Zanu-PF or the regime. That status does not automatically establish a real risk of persecution.

The applicant must show, on the evidence, that the circumstances and milieu of return create that risk. A relative’s asylum grant may enhance the risk where it is likely to become known, but the assessment remains fact-sensitive. An adverse credibility finding does not remove the need to assess the relevant return circumstances. Where material errors of law have occurred but the facts do not compel only one outcome, the proper course is remittal for a fresh assessment.

The appellant, a Zimbabwean citizen, appealed against an Asylum and Immigration Tribunal decision dismissing his challenge to removal following refusal of his asylum claim. The Tribunal had reconsidered an earlier decision and held that it had not materially erred in law.

The appellant relied on country guidance concerning returnees unable to demonstrate loyalty to Zanu-PF or the regime. He relied on his residence in the United Kingdom, failed asylum claim and son’s grant of asylum because of MDC sympathies. The Secretary of State accepted that material errors of law were arguable and consented to remittal, while the appellant sought an outright decision. The central issue was whether the existing facts necessarily established a real risk of persecution or required further assessment of the circumstances and milieu of return.

1. Appeal allowed to the extent of remittal. The Tribunal had made material errors of law by treating the appellant’s lack of profile and credibility as sufficient to exclude the risk identified in RN (Returnees) Zimbabwe CG [2008] UKAIT 00083, and by failing adequately to focus on whether he could demonstrate loyalty on return.
2. The country guidance established that a returnee unable to demonstrate positive support for Zanu-PF or alignment with the regime may face persecution based on imputed political opinion. Residence in the United Kingdom for a substantial period and an unsuccessful asylum claim may enhance the risk. The appellant’s son’s asylum grant, based on MDC sympathies, was also capable of increasing the risk, and the Secretary of State accepted that the son’s status might become known.
3. Enhanced-risk status is not conclusive. The burden remained on the appellant to establish a real risk of persecution. The Tribunal had to consider whether he would return to a milieu where loyalty was assumed, and whether his lack of credibility meant that he could not simply be accepted as truthful about an inability to demonstrate loyalty. The standard of proof was not demanding.
4. The undisputed facts did not compel the grant of asylum. The Tribunal, as fact-finding body, should receive evidence about the circumstances of return and reassess credibility on the relevant risk issue. The case was therefore remitted for reconsideration.
5. The Court agreed that the appellant would not be expected to lie about loyalty or his son’s asylum grant. The principles in HJ (Iran) [2010] UKSC 31, as applied in RT (Zimbabwe) & Ors [2010] EWCA Civ 1285, were relevant but did not remove the need for a fact-sensitive assessment under the Zimbabwe country guidance.

• Court of Appeal (Civil Division): [2011] EWCA Civ 275. Appeal allowed to the extent of remitting the case to the Tribunal.
• Asylum and Immigration Tribunal: The reconsideration decision of 22 October 2009 dismissed the appeal against the Secretary of State’s removal decision and upheld the earlier Tribunal decision of 1 April 2009.
• Secretary of State for the Home Department: The removal decision of 13 February 2009 followed refusal of the appellant’s asylum claim.