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

Return to Zimbabwe as a failed asylum-seeker after prolonged residence in the United Kingdom does not, without more, establish a real risk of persecution. The individual’s circumstances must be assessed as a whole, including the ability to demonstrate loyalty to the regime, political indifference, and relevant family or associational evidence.

The principle in RT (Zimbabwe) [2010] EWCA Civ 1285 protects a person who would avoid persecution only by lying about political beliefs or their absence. It does not create a general rule that every returnee who could avoid harm by falsely professing loyalty is entitled to asylum. Where the evidence is incomplete, the proper course is reconsideration, not an outright grant.

The appellant, a Zimbabwean national, appealed against a second-stage reconsideration decision of the Asylum and Immigration Tribunal dismissing her appeal against refusal of asylum and humanitarian protection. Her account of past political connections and later membership of the Restoration of Human Rights had not been accepted.

Permission was granted on limited grounds. The Secretary of State accepted that the tribunal had not adequately assessed the country guidance in RN (Zimbabwe) [2008] UKAIT 00083 and its application to the appellant, particularly the effect of prolonged residence in the United Kingdom and return as a failed asylum-seeker. The appellant sought an outright allowance, while the Secretary of State sought remission for a fresh determination.

The central issue was whether the established facts already demonstrated, to the applicable low standard of proof, a real risk on return, having regard to RN (Zimbabwe) and RT (Zimbabwe).

1. Appeal allowed and remitted. The case was remitted to the Upper Tribunal for reconsideration de novo before a panel excluding IJ Meah and IJ Sommerville. IJ Meah’s findings at paragraphs 11–13 were preserved.
2. Under RN (Zimbabwe) [2008] UKAIT 00083, return as a failed asylum-seeker after residence in the United Kingdom does not by itself establish risk. The particular circumstances must be assessed as a whole. The possibility that the returnee may demonstrate sufficient loyalty to the regime cannot be excluded without adequate evidence.
3. RT (Zimbabwe) [2010] EWCA Civ 1285 must be read with caution. A person who could demonstrate loyalty only by lying about political beliefs, or their absence, is not thereby denied asylum. But the decision did not establish a general rule that every returnee who could avoid persecution by falsely professing loyalty is entitled to protection.
4. The tribunal must examine the individual’s political loyalty or indifference, family and associates, and the objective country conditions. A lack of political profile in Zimbabwe does not necessarily show that the person would be forced to lie to avoid persecution. If the individual is not truthful, the objective evidence requires especially careful scrutiny.
5. The existing findings were insufficient to determine the appellant’s risk. Her account had been rejected as incredible, and the evidence established only that she had no political profile in Zimbabwe. That did not justify an outright allowance.
6. Jacob LJ added that some regimes may operate on the basis that those who are not for the regime are against it, requiring either genuine support or dissimulation. Whether that is so depends acutely on current country guidance and the individual’s circumstances. Wilson LJ agreed with the remission.

• Court of Appeal (Civil Division) [2011] EWCA Civ 456 — allowed the appeal and remitted the case for reconsideration before a differently constituted panel.
• Asylum and Immigration Tribunal — on second-stage reconsideration, IJ Sommerville dismissed the appeal against refusal of asylum and held that the appellant was not eligible for humanitarian protection.
• Earlier tribunal decision — IJ Meah had allowed the appeal on asylum grounds but dismissed the human-rights grounds. A second-stage reconsideration was then ordered by IJ Southern.