RM (Zimbabwe) v Secretary of State for the Home Department (Rev 1)

Country-guidance risk categories identify persons who may attract adverse interest, but membership of a category does not establish a real risk. Each case requires assessment on its individual facts. Limited political involvement requires exceptional circumstances before risk is established. For Zimbabwean involuntary returnees, airport screening and possible second-stage interrogation must be assessed by reference to evidence of an adverse profile. A tribunal must not assume that CIO officers will act irrationally merely because government rhetoric may be irrational. Treating that assumption as the basis for finding an Article 3 risk is an error of law. Where the same error underpins asylum and Article 3 findings, both must be reconsidered.

RM, a Zimbabwean national, claimed asylum in the United Kingdom based on an imputed political opinion arising from her aunt’s former involvement with MDC (UK). Immigration Judge Montgomery dismissed her appeal but did not address the risk associated with involuntary return.

On first-stage reconsideration, Senior Immigration Judge Gill found a material error and directed further consideration of the Article 3 and humanitarian protection claims. Immigration Judge Sharp subsequently found a real risk of second-stage interrogation and ill-treatment because RM’s family connection with her aunt might be revealed at Harare airport.

The Secretary of State appealed. The central issues were whether reconsideration had properly been ordered and whether Immigration Judge Sharp had irrationally treated the aunt’s historic political activity and the CIO’s conduct as establishing a real risk on return.

1. Outcome. The Secretary of State’s appeal was allowed. Immigration Judge Sharp’s determination was vitiated by an error of law, and the matter was remitted to the Tribunal for further reconsideration in light of the more up-to-date country guidance.
2. First reconsideration. Senior Immigration Judge Gill’s decision was unassailable. Immigration Judge Montgomery had failed to address the material submission that RM might be investigated as an involuntary returnee. The guidance required consideration of whether RM would be interviewed and, if so, what consequences would follow.
3. Country guidance. The categories identified in SM & Others (MDC – internal flight – risk categories) Zimbabwe CG [2005] UKIAT 00100 were potential risk categories, not automatic findings of risk. Each case required assessment on its own facts, with exceptional circumstances needed where political involvement was limited. AA (Risk for Involuntary Returnees) Zimbabwe CG [2006] UKAIT 00061 and HS (returning asylum seekers) Zimbabwe CG [2007] UKAIT 00094 established the relevance of first-stage screening and possible second-stage interrogation. A failed asylum claim or return from the United Kingdom alone did not establish a real risk.
4. Error in Immigration Judge Sharp’s reasoning. He was entitled to consider RM’s family connection and likely selection for screening. He was not entitled, however, to infer that the CIO interview would be irrational from the discussion in HS about irrational public rhetoric. That passage did not establish that CIO officers were an irrational organisation or that interviews would be conducted with irrational suspicion. The assumption was unsupported and irrelevant to the proper assessment.
5. The error infected both the Article 3 finding and the conclusion on refugee status based on imputed political belief. Although the same outcome might have followed from a correct approach, it was not inevitable. The Article 8 issue had not been determined and was not decided by the Court of Appeal.

• Court of Appeal (Civil Division): In [2011] EWCA Civ 428, the Secretary of State’s appeal was allowed and the matter was remitted for further reconsideration in light of current country guidance.
• Asylum and Immigration Tribunal, second-stage reconsideration: Immigration Judge Sharp found a real risk of Article 3 ill-treatment and refugee status on the basis of an imputed political belief arising from RM’s family connection with her aunt.
• Asylum and Immigration Tribunal, first-stage reconsideration: Senior Immigration Judge Gill found an error of law because the first determination had not considered the risk faced by an involuntary returnee, and directed further reconsideration.
• Asylum and Immigration Tribunal, first determination: Immigration Judge Montgomery dismissed RM’s asylum, humanitarian protection and human rights appeals.