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

Where tribunal errors delay an immigration appeal and earlier country guidance has been superseded, the case should ordinarily be determined under the current guidance and present circumstances. An appellant is not entitled to rely on superseded guidance merely because the appeal would probably have succeeded if heard earlier. A different approach requires conspicuous unfairness or another abuse of process. Conspicuous unfairness is not a free-standing ground in the absence of unlawful action by the Secretary of State, and tribunal errors alone do not establish it.

The appellant, a Zimbabwean national, claimed asylum after overstaying her visitor leave. Her claim was rejected and, following reconsideration, her appeal was dismissed on asylum and human rights grounds in a decision identified by case number [AA/04903/2009]. The decision applied the country guidance in RN (returnees) Zimbabwe CG. Administrative errors delayed the challenge to that decision. By the time permission to appeal was granted, RN had been replaced by EM & Others (returnees) Zimbabwe CG. The Secretary of State conceded legal error but sought remittal under the current guidance. The appellant sought an outcome based on RN. The central issue was whether fairness or abuse of process required the superseded guidance to remain applicable.

Appeal allowed and remitted to the Upper Tribunal. The decision was unanimous.

1. Under section 14 of the Tribunals Courts and Enforcement Act 2007, the Court of Appeal had power either to remit the case or to remake the decision itself.
2. The court accepted that the second-stage reconsideration decision contained a legal error. However, the appellant was not entitled to have her case determined under the superseded guidance in RN (returnees) Zimbabwe CG [2008] UKAIT 00083 merely because the appeal would probably have succeeded if heard before that guidance was replaced. The appropriate course was remittal for consideration under the up-to-date guidance in EM & Others (returnees) Zimbabwe CG [2011] UKUT 98 (IAC).
3. The Secretary of State was not responsible for the delay. The errors were those of the Tribunal. In the circumstances, they caused neither conspicuous unfairness nor abuse of process. The appellant’s long period as an overstayer and adverse credibility findings were relevant to the fairness assessment, although the decisive point was that current facts and current country guidance could properly be considered.
4. Hughes LJ emphasised that the R (Rashid) line of authority concerned unlawful decisions by the Secretary of State, including an unjustified change of practice undertaken in circumstances of conspicuous unfairness. Conspicuous unfairness was not a free-standing basis for intervention absent unlawful action by the Secretary of State, and the principle was not readily applicable to judicial or Tribunal administrative errors.
5. The appellant lacked permission to appeal on Article 8 of the ECHR, but any new Article 8 circumstances could be considered at the remitted hearing.

1. Court of Appeal (Civil Division): Allowed the appeal and remitted the case to the Upper Tribunal.
2. Upper Tribunal (Immigration and Asylum Chamber): On 12 February 2010, the second-stage reconsideration appeal was dismissed on asylum and human rights grounds, applying RN (returnees) Zimbabwe CG [2008] UKAIT 00083. The challenge was delayed by administrative errors concerning the applicable appellate procedure and permission applications.
3. Asylum and Immigration Tribunal: The original appeal was dismissed on 5 July 2009. Reconsideration was ordered on 31 July 2009, and a Designated Immigration Judge found a material error of law on 7 December 2009.